Looking Back and Thinking Forward The Current Round of Civil Law Codification in China

• Published in: The International lawyer Vol. 52; no. 3; pp. 439 - 468
• Main Author: Lin, Siyi
• Format: Journal Article
• Language: English
• Published: Chicago American Bar Association 2019
• Subjects: CIVIL LAW; Codes; COMMERCIAL LAW; CUSTOMARY LAW; Customary law, International; History; Jurisdiction; JURISPRUDENCE; Modernization; RULE OF LAW; CHINA; China
• ISSN: 0020-7810; 2169-6578

[...]the article highlights the potential challenges legislators may face with respect to the drafting process. [...]this article will discuss the current wave of civil law codification within a historical context, including an analysis of the newly promulgated General Provisions17 and the drafts of the individual books in the forthcoming civil code. II.The History of Civil Law Codification in China A. The Emergence of Civil Law in the Late Qing Dynasty The history of legal codification in China can be traced back twomillennium to the Spring and Autumn and Warring States periods (480-221 B.C.).18 But the concept of "civil law" did not emerge until the late Qing dynasty (1840-1911), because the statutory codes in ancient times were only of a public nature, emphasizing the safeguarding of state interests and social hierarchies.19 After suffering defeats in the Opium Wars, China was forced to open its door to foreign economies.20 This brought about the "gradual disintegration" of the peasant economy and the acceleration of capitalism.21 Traditional Chinese law became incompatible with these dramatic changes that occurred to both social and economic conditions in China.22 Between 1901 and 1911, Qing governors made great efforts to modernize the legal system in line with Western jurisprudence.23 The immediate purpose of the legal reform was to abrogate the humiliating extra-territorial rights forced on China by Western states.24 In 1911, the Law Codification Commission ('falii bianzuanguan) in charge of revising Chinese laws completed the Draft Civil Code of the Great Qing ("Qing Civil Code").25 Although the Qing Civil Code never came into effect due to the imminent collapse of the Qing dynasty,26 its significance cannot be undermined. [...]the Qing Civil Code failed to "strike a balance" between foreign legal sources and China's civil customs.28 The absence of civil law in Chinese legal tradition meant that the codifiers had to introduce an entirely new system of civil law from foreign jurisprudence.29 The Qing Civi
[...]the article highlights the potential challenges legislators may face with respect to the drafting process. [...]this article will discuss the current wave of civil law codification within a historical context, including an analysis of the newly promulgated General Provisions17 and the drafts of the individual books in the forthcoming civil code. II.The History of Civil Law Codification in China A. The Emergence of Civil Law in the Late Qing Dynasty The history of legal codification in China can be traced back twomillennium to the Spring and Autumn and Warring States periods (480-221 B.C.).18 But the concept of "civil law" did not emerge until the late Qing dynasty (1840-1911), because the statutory codes in ancient times were only of a public nature, emphasizing the safeguarding of state interests and social hierarchies.19 After suffering defeats in the Opium Wars, China was forced to open its door to foreign economies.20 This brought about the "gradual disintegration" of the peasant economy and the acceleration of capitalism.21 Traditional Chinese law became incompatible with these dramatic changes that occurred to both social and economic conditions in China.22 Between 1901 and 1911, Qing governors made great efforts to modernize the legal system in line with Western jurisprudence.23 The immediate purpose of the legal reform was to abrogate the humiliating extra-territorial rights forced on China by Western states.24 In 1911, the Law Codification Commission ('falii bianzuanguan) in charge of revising Chinese laws completed the Draft Civil Code of the Great Qing ("Qing Civil Code").25 Although the Qing Civil Code never came into effect due to the imminent collapse of the Qing dynasty,26 its significance cannot be undermined. [...]the Qing Civil Code failed to "strike a balance" between foreign legal sources and China's civil customs.28 The absence of civil law in Chinese legal tradition meant that the codifiers had to introduce an entirely new system of civil law from foreign jurisprudence.29 The Qing Civil Code was modelled on the German Civil Code (Burgerliches Gesetzbuch), which consisted of five books and separated commercial law from civil law.30 The Qing government appointed a Japanese jurist, Dr. Matsuoka Yoshimasa, to compile the first three books because no Chinese jurists were competent enough to draw up a civil code to modernize the legal system.31 The first three books-General Principles, Law of Obligations, and Law of Real Rights-borrowed a large number of legal concepts from foreign jurisprudence that had never appeared in China's history.32 The alien legal concepts and technical vocabularies meant that the Qing Civil Code was neither close to the Chinese reality nor comprehensible to laymen.33 In addition, the Qing Civil Code failed to incorporate China's long-standing feudal laws and civil customs because the intense time pressure did not allow the Law Codification Commission to complete an investigation of civil customs in China's vast territory.34 The Qing Civil Code merely acknowledged civil customs as one source of law governing cases that were not provided for in article 1 of the code.35 A number of China's unique civil customs-for example, hui, dian, lao dian, and xian mai-were completely ignored.36 The excessive legal transplants and the neglect of Chinese traditional customary laws resulted in the code being unfit for the social circumstances at that time.37 Secondly, the Qing Civil Code was criticized for its persistence of conservative ideology.38 Although the first three books of the code drafted by Dr. Yoshimasa centered on individual rights, the other two books drawn up by Chinese scholars, Family and Inheritance, emphasized the spirit of rites and age-old family values instead of respecting individual rights.39 With the aim of saving the Qing's rule, legal reformers had to demonstrate their loyalty to the existing monarchy, making it impossible for them to draft a civil code in the fully modern sense.40 B.Codification of Civil Law in the Republican Era The 1911 Revolution led by Dr. Sun Yat-Sen turned China into a republic.41 Despite the political turmoil, the Republic never ceased in its efforts to establish a civil code.42 in 1925, the Beiyang government completed the Draft of Civil Law of the Republic of China, which is not discussed further here because it was not a significant innovation from the Qing Civil Code and was never implemented before the national government assumed power in 1927.43 Subsequently, the national government promulgated the Civil Code of the Republic of china ("Republic Civil Code") at the end of 1930.44 In terms of structure and legislative techniques, this code was appraised as "exceptionally well done" compared worldwide with the best civil codes of the twentieth century.45 At present, the Republic Civil Code remains in force in Taiwan after several amendments.46 The principal features indicating the advancement of the Republic Civil Code are outlined below.