Page 192 - 2021 White Paper

1 White Paper on the Business Environment in China
1.7 A Milestone in Legal
Development: China Promulgates a
Civil Code
*Courtesy of Anderson & Anderson LLP
Introduction
Af terthousands of years without a civil
code, China National People’s period of about 2000 years, China was governed by
Congress (NPC) adopted China’s first civil code on
May 28, 2020 with 2879 votes in favor, 2 against,
and 5 abstentions. The Code went into effect on
January 1, 2021.
This first civil code incorporates existing
civil laws, such as those protecting the right to
residence and the right to privacy, along with
regulations in some new areas of law, such
as privacy of personal data online and virtual
property protection.
Various Chinese media including CGTN
have promoted the civil code “as a landmark
achievement of China's efforts to widely promote
the rule of law, at a time when Chinese society
is experiencing a major transformation in its
development. Updating the legislation that the
rule of law relies on is an important step in the
modernization of the national governance system
and improving its capacity to respond to the
country's needs. As one of the most important
laws on the protection of individual rights and
interests, the civil code will give a major boost to
the level of social fairness and justice in China.”
Our legal legend and leading Chinese law
expert, Dr. David Buxbaum and his team at the
law firm of Anderson and Anderson, LLP have
conducted analysis of this new civil code which are
presented in the following pages. Dr. Buxbaum
has been practicing law in China for the past 48
years and his contributions to the advancement of
the legal system in China have been enormous.
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A. Introduction
From the Qin dynasty to the Qing dynasty, a
traditional Chinese law, a system that influenced
law in Japan, Korea and Vietnam, the longest
successful legal system in history, which came to
an end with the Xinhai Revolution of 1911. Even
before the Revolution, the Qing government began
a program of modernizing traditional Chinese law
and various persons, such as the outstanding legal
scholar, Shen Jiaben, were instrumental in bringing
about change in traditional law. During the
Republican period, until 1st October 1949, many
new laws were drafted and some implemented.
However, on 1st October 1949, China abolished
all previous laws and regulations and commenced
development of a new legal system. This new
system, based in large part on Soviet law,
progressed until 1957, developing draft legislation,
legal journals such as Zhengfa Yanjiu (Study of
Politics and Law) and enacting the Marriage Law
of 1950 and a reasonable Constitution in 1954.1
However, these developments came to a dramatic
end in the late fifties during the Anti-Rightist
Movement and the Great Leap Forward, which was
a great leap backwards for legal development. Not
until 1976 with the end of the Cultural Revolution
and indeed more properly until 1978, did the legal
institutions begin to recover. Prior thereto, except
for regulations for State Owned Enterprises (“SOE”),
the only publicly promulgated laws were the
Marriage Law of 1950, the Counter-Revolutionary
Regulations and a poor quality Constitution.
1 See David C. Buxbaum, Preliminary Trends in the
Development of the Legal Institutions of Communist China
and the Nature of the Criminal Law, International and
Comparative Law Quarterly (1962), lead article for the
year, reprinted in Government of Communist China, Chan-
dler, San Francisco in 1966.