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A Legislative Milestone
China adopts new basic principles of the civil law to reflect current situation
By Song Zhihong | NO. 13 MARCH 30, 2017
 

Zhang Dejiang, Chairman of the Standing Committee of the National People's Congress, talks with a local resident in Yibin on November 24, 2016 during a visit to Sichuan Province to research the legislation of the General Provisions of the Civil Law (XINHUA)

 
Compiling a civil code suited to China's socialist market economy and the interests of the people is vital for national prosperity and public well-being, and has been a long-cherished dream of generations. In 2014, during the Fourth Session of the 12th National People's Congress, it was decided that a civil code would be compiled by 2020.

It was planned to be developed in two steps: first, adopting basic principles for regulating civil activities, and then compiling five individual books on property, contract, tort liability, marriage and inheritance.

The General Provisions of the Civil Law are the opening chapter of the civil code, and is to replace the General Principles of the Civil Law adopted in 1986 as the latter has become outdated. The General Provisions embody modern characteristics, China's culture and foreign experiences.

The General Provisions, adopted at the Fifth Session of the 12th National People's Congress on March 15, will take effect on October 1.

Reflecting Chinese character

The civil laws enacted before the founding of the People's Republic of China in 1949 were influenced by German jurisprudence, and the influence persists. On the other hand, China is a socialist country, so its legal system after 1949 has been naturally affected by ideas on civil law from the former Soviet Union.

Since the implementation of the reform and opening-up policy and the development of its socialist market economy, China has become more and more open. Its legal theories and practices have drawn extensively on the outstanding achievements of human civilization, and this is reflected in the General Provisions.

Meanwhile, as China's international status rises, it has become increasingly more confident in its own system and culture. Its legislation, including civil laws, embodies Chinese characteristics, which has created a spillover effect. For instance, the General Principles of the Civil Law adopted in 1986 reflect distinct Chinese characteristics in its style and layout.

The General Principles clearly spelled out the basic civil law principles in one chapter and civil liabilities in another. This innovative practice has been commended by some foreign scholars and emulated by some countries.

The General Provisions also reflect China's traditional cultural values, such as love, faith, justice and harmony; and socialist core values, such as freedom, equality, justice, the rule of law and patriotism. For instance, it stipulates that those dishonoring heroes and martyrs or their portraits and affecting the public interest would bear civil liability.

 

General Provisions of the Civil Law (CFP)

Keeping up with the times

The General Provisions have been drafted to reflect social development. While dropping outdated provisions in the General Principles, it has added provisions to emphasize environmental protection and equal protection of property rights.

The principle of paying an equivalent compensation has been omitted as it applies to commodity exchanges rather than civil activities. It was included in the General Principles because when it was drafted, property relations were put above personal relations. Thanks to social and economic development, civil laws are becoming more and more people-oriented and more important in regulating personal relations.

The statements that civil activities should follow state policies where there are no relevant provisions in the law and that civil activities shall not undermine state economic plans are also no longer included.

As the legal system improves, state policies are no more norms governing civil activities. Meanwhile, as the market economy develops, fewer national economic plans are mandatory, and they too are no more guidelines for civil activities.

The General Provisions add "a green principle," that is, it stipulates that civil activities should be conducive to resource saving and ecological environment protection. It not only regulates relations between people, but also that between people and nature. This enshrines China's traditional emphasis on harmony between human and nature, the green development concept promoted since the 18th National Congress of the Communist Party of China (CPC) and the international idea of sustainable development.

The General Provisions also uphold public ownership, the foundation of the socialist economy according to the Constitution, while offering equal protection to property rights. It also ensures that civil subjects can enjoy civil rights according to law.

Article 113 of the General Provisions stipulates that property rights of all civil subjects shall be protected equally. This is in line with the central leadership's decision to improve property rights protection.

 

Civil rights protection

The General Provisions have enumerated various civil rights to highlight the importance given to respecting and protecting civil rights.

It improves on the General Principles by stipulating, for the first time, that a natural person's personal freedom and dignity are protected by law, and so are his or her personal rights arising from marriage and family relations. For the first time, it also clearly provides that a natural person enjoys the right to privacy, and his or her personal information is protected by law.

Personal rights have been given a higher priority. Previously, they came after property rights, creditor's rights and intellectual property rights. Now the order has been changed, indicating personal rights have greater importance.

The General Provisions have kept up with the Internet era by specifying protection of personal information, data and virtual property. This is a pioneering move in the world.

It specifically stipulates, "Any organization or individual needing to obtain others' personal information shall do so in accordance with the law and ensure information security. No organization or individual may illegally collect, use, process or transmit personal information, or illegally sell, buy, provide or disclose others' personal information."

Innovative classification 

How to classify legal persons in the General Provisions was a subject of long debate.

In the traditional civil law system, legal persons are generally divided into corporations and foundations. However, such classification does not suit China's national conditions. The General Provisions classify legal persons into three categories: for-profit, non-profit and special legal persons.

Special legal persons include government organizations, rural collective economic organizations, urban and rural cooperative economic organizations, and community-level self-governance organizations. This innovative classification echoes China's practical needs.

Moreover, unincorporated organizations are listed as the third type of civil subjects, alongside natural persons and legal persons. According to the General Provisions, an unincorporated organization is not a legal person, but an organization that can engage in civil activities in its own name according to law. Unincorporated organizations include sole proprietorship enterprises, partnership enterprises and professional service organizations that do not have a legal personality.

Whether partnership organizations can be listed as civil subjects other than natural persons and legal persons has been debated in many countries. The General Provisions list unincorporated organizations in a separate chapter as a type of civil subject, which is a breakthrough in international civil law theories.

All in all, the General Provisions, keeping abreast of China's current conditions and drawing upon historical and international experiences, mark a new milestone in civil law legislation.

Copyedited by Sudeshna Sarkar

Comments to zanjifang@bjreview.com

The Voice of the People

During the annual sessions of the national advisory body and legislature, National People's Congress (NPC) deputies and Chinese People's Political Consultative Conference (CPPCC) National Committee members discussed the draft General Provisions of the Civil Law. This is what some of them said:

Chen Yueliang, NPC deputy and Ministry of Civil Affairs official: The General Provisions strengthen legal civil rights protection significantly. For example, personal information and virtual assets have been brought under legal protection.

Li Mingrong, Deputy Procurator General of the People's Procuratorate of Fujian Province and CPPCC National Committee member: The General Provisions reflect China's achievements in civil law in the past decades and are suited to our national conditions.

Wang Xuecheng, CPPCC National Committee member and legal expert: The civil law lays a legal cornerstone to support economic development. Over the last three decades, we have legislated many individual civil laws. Now it is time to approve the General Provisions and compile a civil code, which is planned to be enacted in 2020.

The General Provisions are an important step to implement China's objective of advancing the rule of law. We must make socialist core values the guiding doctrine while compiling the civil code.

Rao Geping, CPPCC National Committee member and law professor at Peking University: The General Provisions highlight the principles of fairness, equality and justice as well as the protection of citizens' legal rights.

With China's economic growth and social progress, civil law has become increasingly important for everyone. As the General Provisions are adopted, we must continue to promote legal education, make people aware of their legal rights and obligations, and make the spirit of the rule of law take root.

Hou Xinyi, CPPCC National Committee member and law professor at Tianjin University of Finance and Economics: While compiling the civil code, we should make a comprehensive survey of civil and commercial affairs as a base to ensure the legislation is suited to China's national conditions and customs as well as the needs of its people.

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