Page 194 - 2021 White Paper

1 White Paper on the Business Environment in China
While China had codes of law from the time
of Qin dynasty, 221 BCE, until 1911 CE, but this
was not a civil code.2 Yet modern China did not
consider any of the traditional legal practices when
developing a civil code, despite the outstanding
success of the traditional legal system. In
essence, China adapted a contemporary version
of the Roman Civil Code, as modified by specific
characteristics of contemporary Chinese law. The
concept of a civil code originates from ancient
Roman law, where the Emperor Justinian enacted
the Corpus Juris Civilis, on or about 529 CE, which
included the Institutes, Digest, Codex and Novels.
The Corpus Juris Civilis essentially deals with
private law about persons, things and actions. The
Institutes particularly influenced the categories of
modern legal thought in Europe. For example in
France, in 1803-4 by enactment of the Code Civil.
As the Institutes started book one, part three with
the laws regarding persons, so the Civil Code of
China, book one, chapter two commences with
the law about persons. The Civil Code of Mongolia,
similar to European codes, chapter three refers to
citizens and chapter four about juristic persons.
1. Statutory Law
While many developing states, such as
Mongolia in 2002, adapted a comprehensive
civil code, based on borrowing large part of
other nation’s code, China proceeded in its own
way by enacting piecemeal legislation, while
working on a civil code, which went through many
2 For a very long time, foreigners thought that China did
not have civil law and civil litigation during the traditional
period. In fact, there was substantial civil law and civil liti- situations. There are excellent additions to civil
gation in China during the traditional period. See David C.
Buxbaum, Some Aspects of Civil Procedure and Practice at
the Trial Level in Tanshui and Hsinchu from 1789 to 1895,
Volume XXX Journal of Asian Studies, p. 255 (1971). This
article analyzes a Qing dynasty magistrate’s archive and
found that about one third of the cases handled by this
magistrate were civil proceedings. This article has been
called a seminal article and has been reprinted in China.
Additionally, because of certain punishments adminis-
tered by the traditional courts, such as the cangue, foreign
persons assume that traditional Chinese law was cruel
and unsophisticated. Thanks to the outstanding scholar-
ship of Professor Dai Yanhui of Taiwan University; and
most importantly the work of Professor Zhang Jinfan of
Zhengfa University and his many students, we now know
the traditional Chinese legal system was among the most
sophisticated and clearly the most enduring legal system
in world history.
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unsuccessful drafts. For example, in 1979, the
third time a civil code was considered, China had
just commenced a historical era of reform and
opening, therefore, the promulgation of the Civil
Code was delayed for emphasis on other matters.
China thus decided to enact separate statutes
for civil law matters, then gradually accumulate,
summarize and improve these statutes, and finally
formulate a Civil Code.3 Therefore, China enacted
the amended Marriage Law of 1980, Succession
Law of 1985, General Principles of the Civil Law of
1986, Guarantee Law of 1995, Contract Law of 1999,
Law of Property Rights of 2007 and the Tort Liability
Law of 2009. In March 2015, the Legislative Affairs
Commission of the Standing Committee of the
National People’s Congress officially launched
the compilation of a Civil Code. Over five years,
after ten Standing Committee meetings and two
national congresses, the Civil Code was finally
completed. On 28th May 2020, the Third Session
of the 13th National People’s Congress adopted
the Civil Code of the People’s Republic of China, as
a specific manifestation of the civil rights granted
by the Constitution of the People’s Republic of China.
For example, the Constitution, Article 13 provides,
the lawful private property of citizens may not be
encroached upon; the state protects by law the
right of citizens to own private property and the
right to inherit private property. The Constitution
Article 49 also provides, marriage, the family and
mother and child are protected by the state.
China’s Civil Code largely organizes existing
civil laws, rather than creating entirely new civil
law, although new civil law is promulgated in
the Civil Code. There are also provisions for new
law, such as the section on personality rights,
which properly organizes and enhances the
rights of persons to their names and images, to
be free from harassment and defamation and in
another section to acquire property. Prior to the
publication of the Civil Code, there existed 32 civil
and commercial laws in force in China, but 9 of
them, including the Marriage Law, the Succession
Law, the General Principles of the Civil Law, the
3 Mao Zedong, On Practice, 1937. This treatise by Mao
Zedong is very influential in Chinese government proceed-
ings. For example, the Code of Civil Procedure in modern
China was used by the courts even before it was promul-
gated and based on that experience, revised and then
promulgated.