On occasion of the upcoming Annual Session of the National People’s Congress, a complete Draft of the first Civil Code of the People’s Republic of China is expected to be finally submitted for deliberation, concluding an ambitious project that started in 2012, but with a much longer history behind it.
In fact, this great work, which confirms the Chinese legal system as belonging to the tradition of the Civil Law Systems, is not entirely new, as the idea of a comprehensive Chinese Civil Code can be seen in various eras of Modern China.
A first attempt at modern codification dates back to the late Qing Dynasty (1902–1911), in which basic laws were introduced as per tradition in Western countries. This became the first attempt of modern legislation in China, and it included both civil law and commercial law, modelled after the codes of Germany and Japan.
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Afterwards, following the 1911 Revolution, the nationalist government promulgated the first civil code in China’s history in 1930. This also followed the style of the German Civil Code (Bürgerliches Gesetzbuch; BGB), mainly inspired by Roman Law and in particular the great corpus iuris civilis (“Code of Justinian”).
The selection of a civil law system, instead of a common law system, by Chinese leaders was down to circumstances deeming it a better fit. However, the establishment of a socialist government in 1949 led to not only the complete abolition of the former legal system, but also to a domination of the Soviet-style planned economy for more than three decades.
Therefore, the next round of codification was not initiated until the late 1970s after the economic reform and opening-up policy was introduced by Deng Xiaoping. Although two drafts with more than 460 articles were prepared, political uncertainties of the time, together with insufficient experience and theoretic preparation, rendered it very difficult to achieve further progress. As a result, the drafting group was dissolved by the Standing Committee of the National People’s Congress in 1981. However, the General Principles of Civil Law (GPCL) was promulgated in 1986 as an interim solution to meet the urgent needs of social and market development.
The GPCL laid down an important foundation for private law development in China. For the first time in PRC history, that the law explicitly stipulated that it shall govern property relations among the nation’s subjects with equal legal status. Therefore, it not only provided the urgently needed rules and guidelines, but also laid the foundation to develop a civil and commercial law system in China.
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The Chinese leadership was finally able to announce the codification of Chinese civil law in 2012. The General Rules of Civil Law of the People’s Republic of China (GRCL), adopted on 15 March 2017, were intended to be the first section of a codified PRC Civil Code, containing general legal principles also applicable to other sections of the planned Code, covering the law of personality, obligations, property law, family and estate law.
This particular structure still evokes the BGB and, indirectly, the traditional Code of Justinian. However, the current process of civil codification in China appears to have distinctive features in many respects.
The complexity of modern society and the economy has led western legislators to approve a myriad of special laws, which complements the civil code, frustrates the original aim of having a single code and expression of general principles which may govern any inter-subjective relations.
In contrast. the Chinese civil code thus represents how the traditional and original structure of civil law codification may be reinterpreted and readapted for a contemporary and complex society. Whether or not the Chinese legislator has accomplished this exceptional goal is the next question to be asked.
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