The Development of Chinese Civil Law - Western influence and Chinese Characteristics
This analysis examines the historic origins of modern Chinese civil law, its current development and its defining characteristics.
Walking on Beijing's many streets, regardless if you simply buy a refreshment or sign a contract worth thousands of Renminbi, in both cases a huge amount of civil laws and regulations regarding the thus emerging duties, the position of the contractors, and the effectivity of the contract itself are already working in the background. Being a matter taken for granted by most westerners, explicit civil regulation is a relatively new concept to the legal tradition of the People's Republic of China, not being introduced before the PRC's new role as an emerging market nation made civil legal compliance a necessary requirement in order to attract foreign investments. But although China undoubtedly has one of the world's oldest and richest legal traditions, ancient Chinese law does not play an important role in today's civil procedure. Instead, the Chinese civil code does more than anything else remind of the codified European law, precisely the German civil law code.
What exactly led to this development? How did the PRC end up with a civil law so different from its own ancient legal tradition? Is the current Chinese civil code a mere copy of the original BGB (German Civil Code)? Where are the similarities between both, what are the specific Chinese characteristics?
This article tries to find an answer to these questions by first examining the historic origins of modern Chinese civil law and then focusing on the code and its individual characteristics itself.
Historical Development of Modern Chinese Civil Law
To answer the before mentioned questions, we first have to see from which point continental European law began to evolve into Chinese civil law, which stages it underwent and which conditions eventually led to the abandonment of China's own legal traditions.
In contrast to the civilized countries of the western hemisphere, the traditional Chinese understanding did not diversify between civil and criminal law. While codified law mainly dealt with administrative and criminal matters, the civil law (termed „minor matters“ in the Qing-Code, the main legal code of the last imperial dynasty) has always been quite underdeveloped. For written law being opposed by traditional Confucian scholars, customary law based on handed down rites (li) and communal mediation were usually the preferred choice for civil disputes between citizens.
It took until the last decade of the Qing Dynasty in the early 20th century, when the imperial government started to develop their own draft of a Civil Law code as a response to the so called „unequal treaties“, which were signed by China and the United Kingdom as a result of the British Victory in the first Opium War in 1842 and allowed extraterritorial application of foreign laws on Chinese ground. In Civil disputes with foreign businessmen, it was soon established that the Chinese authorities ought to deal with their fellow countrymen according to Qing Law, while their foreign counterparts were subject to their respective homeland's regulations. The only way to compensate for this judicial loss of power was to develop a Chinese civil law code that matched the western standards in all relevant affairs and could thus be accepted by the foreign colonial powers.
Subsequently, Chinese Scholars, supported by Japanese Judges and lawyers, worked together on a draft that, for the first time since the establishment of Imperial China, did not rely on the confucian system of rites and natural law. Instead, the new civil draft was strongly modeled after the Roman law based German Civil Law Code (BGB), that in contrary to traditional Chinese legal thoughts, seeks to govern human activity ideally by natural or legal persons as individuals. Due to its strong dependence on the German Civil Code, the Qing code's allocation, functionality and legal mechanics were hence based on the BGB: While the first out of five parts introduced general principles applying for the whole Civil Code, like in the original, the second and third are dealing with the Law of obligation and the law of things. However, traditional Chinese thoughts did not completely vanish in the process. Unlike the rest of the Civil Code, the last two parts – Family Law and Law of inheritance – are based on Chinese legal traditions, mostly due to the rejection of neglecting a family being a unit and classifying marriage as just one form of treaty.
Despite the first three books of this new Qing Civil Law Code were finished in 1911, the political turbulences leading to the eventual downfall of the dynasty prevented the draft from becoming official law and were thus never promulgated.
Even though the Qing Empire was replaced by the Republic of China in 1912, in terms of its civil law, the new government sticked to the old Qing Code and traditional Chinese legal customs rather than adopting the recently finished Civil Code draft. However, the process of drafting a new civil code was resumed after the emerging civil war between hostile warlords gradually began to cease and the Nationalist Party Kuomintang finally took over power in mid 1920s. Since the remaining colonial powers did still not accept the old Qing Code as satisfying, the Nationalist government had a strong interest in establishing a new Civil Code in order to end extraterritorial application of the colonialists' rules in China as stated in the Unequal Treaties.
Therefore, a first draft for a new Republican Civil Law was published in 1926, a revised copy of the 1911 Qing Code, now emphasizing western continental law not only in economic, but also in Family and Inheritance Law. Again, arising military and political conflicts prevented this draft from becoming official state law and it would take another four years until the next attempt was launched.
Finally in 1930, the once again edited draft of 1926 was promulgated as first Republican Civil Code, marking a huge shift in Chinese Civil tradition by entirely replacing the family with the individual as smallest basic social unit. As the German Code, its main goal was not to uphold the traditional harmony and social stabilty inside the empire, but to serve a „capitalist market economy organized around contract-makers“. With only a few traditional Chinese laws remaining, the main source for the newly installed code were laws, that have been directly adopted from the German and Swiss Civil Codes. The Swiss code, for once, had the advantage of being strongly based on the German BGB while avoiding its doctrinaire abstraction and simplifying its legal language and mechanics. One example for Swiss simplification is the inclusion of general commercial law into the Swiss Civil Code, that was adopted by the Chinese as well.
Although the law was officially passed in 1930, due to the size of the Republic of China, the short timeframe in which the Nationalist government hold power and the emerging military conflicts with the Communist Party and the Japanese Empire leading to their eventual loss of power, the Republican Civil Code was hardly used in mainland China at all.
After Mao Zedongs troops emerged victorious against the remaining Kuomintang forces on the mainland theatre, the „Common Program“ (a temporary constitution) passed by the Communist led People's Political Consultative Conference in 1949, stated in its Article 17, that all laws and regulations that were established under the jurisdiction of the Nationalist government were invalid, thus anullating the Republican Civil Code as well.
In the upcoming judicial vacuum, the new Communist government was gradually trying to implement Soviet-style institutions like people's courts and people's procuracies. However, the first draft for a new civil code was not introduced until 1956. Modeled strongly after its Soviet-Russian prototype from 1922, still featuring the mechanics of for the whole book applying general principles but replacing the idea of free individual contract makers in favor for a socialist state planned economy. Implying the abandonment of private property, this rendered the law of things unnecessary and was consequently replaced it by a law of ownership instead.
In the end, the draft was never enacted by the National People's Congress, both due to internal struggle inside the party as a result of the „Anti-Rightist campaign“ in the early 1950s and external factors such as the gradual falling-out between the PRC and Soviet Russia. Being modeled after the Soviet Civil Code and this code itself being based on the German BGB, it was especially argued, that western liberal jurisprudence had too much influence on China's socialist legal system.
In order to respond to the lack of legal certainty in civil matters, Mao Zedong ordered the Chinese legislature to come up with a new Civil Code draft, that would support his planned economic agenda of 1962. Unlike all previous attempts to create a Chinese Civil Code, this draft published in 1964 was the first one to insist on China's legal autonomy both from the Soviet Union and the western states and was not modeled strongly after any other foreign law, hence avoiding any resemblance in its mechanics as well as in its terminology. This very basic draft only contained 252 articles, excluded family, tort and inheritance law and mainly consisted of political slogans to promote government policies. Although creating a socialist Civil Code with unique Chinese characteristics, even this draft failed to become official state law due to the yet again upcoming internal conflicts that would eventually result in the „Great Proletarian Cultural Revolution“ of 1966, with law schools being closed and the Ministry of Justice disbanded.
Still lacking even fundamental certainty in civil matters, the most customary method to settle civil disputes was politicized mediation by party officials, resulting in a lawless time during Mao Zedong's years of reign.
The Opening and Market Economy period
When the Cultural Revolution started to cease after the death of Mao Zedong in 1976, the new Chinese government was aware that the desperately needed reconstruction of its shattered economy could only be achieved by giving up China's political isolation and granting a minimum of civil legal certainty to attract foreign investments, thus entering an era of legal reforms.
First introducing the „Economic Contract Law“ in 1981, these first civil law regulations in decades saw a strong recourse to Soviet Russian Civil Law, creating half independent managers of a state dominated socialist economy, forcing its subjects to obey to state's economic strategies and needs. Although a third draft for a full Civil Code, that once again borrowed heavily from Soviet Russian (and Hungarian) Civil law, had been finished in 1982, it was hence not promulgated due to the ongoing argument about the deregulation of the Chinese market and the still very weak position of its market economy. Since China still lacked privatization of property and therefore the fundamental basis for a modern civil law code, the reform government decided to take a more pragmatic stance: Instead of drafting a fully incorporated code, it would enact the several specific laws separately. As the debate about whether or not implementing a full Civil Law Code continued, real progress on this issue did not happen before 1985, when the government enacted the „General Principles of Civil Law“ (GPCL), that should at least serve as a fundamental outlining for all matters concerning civil law. While most basic legal concerns had been addressed by the GPCL, its articles remained rather unspecific, missing clear disambiguation of property rights and contract types. In order to remain flexible on the interpretation of laws and changing political circumstances, keeping the guidelines unspecific was a a customary instrument with legal gaps being avoided by regulations and interpretation given by the People's Supreme Court for the feshly enacted civil laws.
Initiated by Deng Xiaoping’s politics of abandoning planned in favor of market economy in early 1990s, the urge for more comprehensive civil laws rose dramatically. As a first step to meet the call of Chinese scholars and businessmen, the Chinese government combined in 1999 all formerly enacted contract laws into a Unified Contract Law Code. While the general principles of this newly formed code were created after Anglo-American and United Nations outlines, most of its mechanics, doctrines and principles were borrowed directly from German BGB or BGB based civil codes of other countries such as Japan and Taiwan.
This marking the beginning of a new drafting attempt, in 1998 nine legal scholars were advised by the Standing Committee of China's National Assembly of Representatives to outline a new basis for a general civil code. Even though finishing a fourth draft, that once again strongly resembled the German BGB in 2002, legal debate about the inclusion and legal foundation of tort and intellectual property law eventually led to a suspension of the drafting process by the government and the debate whether a general code should be enacted is by the time of writing still undecided.
Characteristics of modern Chinese Civil Law
As mentioned before, current Chinese Civil Law features a lot of the mechanics and legal terms that clearly qualifies it as directly or at least indirectly German inspired (mainly drawn from Taiwan and Japan). The GPCL, for instance, works for its main part in the same way as the general outlines of the BGB influence the whole rest of the German Civil Code. Law of things, obligations and tort do, even though being promulgated separately, follow the German pattern, and many of its articles have simply been translated from German to Chinese. However, even though the structure of the GPCL closely resembles the German BGB, some characteristics that serve specific Chinese necessities deserve attention.
These charcteristics are best reflected in the GPCL's understanding of property law. While being translated, the term „property“ means the same in Chinese and German, the way it is interpreted by the respective legal tradition is one of the key differences of the understanding of Civil Law in both countries. In Germany, organized as a liberal market economy, especially private property is meant to be the basis of a society that is built around individual contract-makers and thus only exceptionally differentiates between public and private owned property.
On the contrary, in China, the right to accumulate property in private hands has been a debated issue. Enormous accumulation of private wealth and land emerged as early as in Tang-Dynasty, leading to multiple uprisings and aggravated in the following centuries until the CPC took over control in 1949, in part because they promised to fairly distribute confiscated landowner property among the suffering peasantry. Additionally, the newly formed government promoted socialist ideology that divided property into three different kinds: While state owned property - as the most productive form of ownership in a socialist country - and collective property thus enjoyed superior legal protection, individually owned private property was regarded as the basis of the capitalist system and the root of exploitation. As a result, the prior redistributed land was hence again collectivized by the Communist Party, trying to eliminate all kinds of private property. It remained this way for the most part of Mao Zedong's rule until the opening era was initiated in the late 70s. Even though private ownership had been reintroduced as a measure of the initiated economic reforms, Chinese Civil law does still explicitely differentiate between public and private property. While the current 1982 Constitution was already made under the impression of market economy reforms, socialist public ownership was still defined as being „divine and not subject to infringement“, safeguarding the legal position of state ownership and upholding power over private property, while at the same time giving it restricted legal recognition.
As part of a relatively new development, however, the 2007 promulgated law of things does in article 4 challenge the traditional view of legal separation between public and private property. Albeit reciting state, collective and private ownership, it does guarantee equal protection of all three types to the same extent. Being heavily contested by the media, some civilians and occasionally even legal scholars, most law professors supported the draft as being necessary for the state's policy to develop a non-public economy and to eventually safeguard the implementation of the article in the final draft against all opposing concerns.
Taking all into account, we are able to see the bigger picture of China's Civil Law development. First being modeled after the German Civil Law Code in a time, where the circumstances made the establishment of a western-style civil code a necessity for legal sovereignty, almost all attempts to form a civil code were closely related to its German prototype, although paying tribute to specific ideologies present at that time. Gradually driving back those ideologies in recent years, modern Chinese Civil Law does on the one side strongly resemble the principles, dogmatics and mechanics of German BGB, but does on the other hand still keep some distinct features such as the different interpretation of certain legal terms due to its socialist legal traditions.
While failed attempts to enact a comprehensive Civil Code by different governments over the flow of the last one hundred years may be one of the most unique features of Chinese legal tradition, it seems as the responsible committee currently working on the already fifth big draft might end at least this particular tradition.
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