Draft of the Civil Code of China with Explanatory Notes. Book on Property Rights

Author: Liang Huixing
Publisher:
Publish Date: 2004-12-01
Features: China's history has implemented an autocratic system and pursued a policy of prioritizing agriculture over commerce. All legal codes throughout the dynasties were criminal codes, with no modern civil code. The proposal to compile a civil code originated in the late 19th century. On January 29, 1898, Kang Youwei's "Sixth Letter to the Qing Emperor" pointed out that Western powers had seized China's consular jurisdiction, citing the reason as "our criminal laws are too severe and our regulations differ," and suggested establishing a "Legal Bureau," "adopting the laws of Rome and the United Kingdom, the United States, Germany, France, and Japan," to draft civil and commercial laws, which China had "long lacked." In 1902, Emperor Guangxu issued an edict: "Adopt foreign laws and revise legal codes." In 1908, the compilation of the civil code began, and by 1910, the "Draft Civil Code of the Great Qing" was completed. However, it was not formally promulgated due to the overthrow of the imperial system by the 1911 Revolution. After the establishment of the Republic, the Beiyang government continued the compilation of legal codes and completed the "Draft Civil Code of the Republic of China" in 1925. It was also not formally promulgated but was used as a guideline by the Judicial Department for lower courts. In 1927, after the Northern Expedition succeeded, the Nationalist government led by the Kuomintang established the Civil Code Drafting Committee to compile the civil code. On January 1, 1929, it completed and promulgated the "Civil Code of the Republic of China" on December 26, 1930, marking the first civil code in Chinese history. In 1949, after the victory of the People's Revolution led by the Communist Party of China, the People's Republic of China was established, and the Central People's Government formally abolished the "Six Laws of the Republic of China," including the "Civil Code of the Republic of China." To date, three attempts have been made to compile a civil code. The first two were in 1954–1956 and 1962–1964, both interrupted by political movements. The third attempt began in 1979 and, by 1982, had drafted the "Draft Civil Code of the People's Republic of China (Volumes I–IV)." However, due to a change in legislative policy, the compilation was suspended. On January 13, 1998, Vice Chairman Wang Hanbin of the Standing Committee of the National People's Congress invited civil law scholars Wang Jiafu, Jiang Ping, Wang Baoshu, Liang Huixing, and Wang Liming to discuss the drafting of the civil code. They unanimously agreed that the conditions for drafting the civil code had been met. Vice Chairman Wang Hanbin then decided to immediately resume the compilation of the civil code and commissioned nine individuals—Wang Jiafu, Jiang Ping, Wei Zhenying, Wang Baoshu, Liang Huixing, Wang Liming, Fei Zongyi, Xiao Xun, and Wei Yaorong—to form the Civil Code Drafting Working Group, responsible for compiling the draft civil code. That same year, in March, the first meeting of the Civil Code Drafting Working Group discussed Liang Huixing's "Draft Legislative Proposal for the Property Law" and resolved to entrust Liang Huixing with drafting the property law. In September 1998, the second meeting of the Civil Code Drafting Working Group discussed three draft civil code proposals designed by the Civil Law Teaching and Research Office of China University of Political Science and Law, Yang Zhenshan, Wang Liming of the Law School of Renmin University of China, and Liang Huixing of the Institute of Law of the Chinese Academy of Social Sciences. It resolved to entrust Liang Huixing with drafting the outline of the civil code. In October 1999, Liang Huixing completed the "Draft Legislative Proposal for the Property Law of China" and the "Draft Outline of the Civil Code of China." In 2000, Liang Huixing successfully applied for the National Social Science Fund of China under the research topic "Legislative Research on the Chinese Civil Code," forming a 25-member "Legislative Research Group on the Chinese Civil Code" based on the original "Property Law Research Group." Following the "Draft Outline of the Civil Code of China," the group began drafting the civil code. By February 2002, the "Tort Liability" and "Inheritance" chapters were completed. On April 9, the "General Provisions" chapter was completed, followed by the "General Provisions of Obligations" on April 13. The "Contracts" chapter was completed in mid-May, the "Family Relations" chapter in mid-August, and the "Property Law" chapter (the "Draft Legislative Proposal for the Property Law of China") was completed in 1999. By the end of 2002, the "Draft Civil Code of China" was fully completed, comprising seven chapters and 1,924 articles. The "General Provisions," "Property Law," "General Provisions of Obligations," and "Contracts" chapters were formally commissioned by the legislative authorities, while the "Tort Liability," "Family Relations," and "Inheritance" chapters were not. The draft was published simultaneously on the Civil and Commercial Law Network of Renmin University of China. The drafting adopted the Pandecten system, classifying rules governing civil life relationships into four chapters: Property Law, Obligations, Family Relations, and Inheritance. Common rules across chapters, such as subjects of rights, legal acts, agency, statute of limitations, and periods, were extracted as the "General Provisions" chapter, forming a "general provisions – specific provisions" structure for the code. Given the development of the modern market economy, various new types of contracts and torts have emerged, leading to a significant increase in the number of articles in the obligations chapter, which is disproportionate to the other chapters. Therefore, following the Dutch Civil Code, the obligations chapter was divided into "General Provisions of Obligations," "Contracts," and "Tort Liability," creating a "double-layer" structure for the code. From the drafting system, chapter arrangement, institutional design to the wording of every article, the draft placed special emphasis on the logic, system, and operability of the law, aiming to ensure the fairness, consistency of judicial rulings, and the predictability of legal consequences for citizens' actions. Based on a thorough review of legislative and judicial experiences since the reform and opening-up, the draft closely aligns with the realities of Chinese social life, extensively referencing legislative experiences and case law doctrines from developed countries and regions, aligning with the trends of social progress and legal development, and ensuring coordination with international conventions and practices. In terms of value orientation, it prioritizes a rights-based approach while also considering the public interest. It balances the guarantee of material living conditions with respect for personal dignity, fully implements the principle of autonomy, and emphasizes the practical protection of civil rights, restricting them only when justified by the public interest and through legal procedures. It also balances social justice with economic efficiency, as well as transaction security and convenience. It firmly upholds the principles of substantive equality between the sexes and the protection of the vulnerable, providing special protection for workers, consumers, women, children, the elderly, and the disabled. It focuses not only on addressing current social issues in China but also on the future of the Chinese nation, aiming to establish a competitive, fair, and unified market economy order, as well as a harmonious, healthy, and family-oriented social order, laying the foundation for China to ultimately achieve true human rights, democracy, a rule of law state, and modernization. All members of the research group are fully aware that the power of national legislation rests with the legislative authorities, and the current legislative system does not yet meet the requirements of scientific and democratic legislation. The Civil Code Drafting Working Group is merely a name with no real authority, and expert advice is not genuinely valued. Therefore, we do not expect this draft civil code to be adopted by the legislative authorities. However, driven by the pursuit of science, democracy, and the rule of law, and with a sense of responsibility toward the people, the nation, academia, and the law, the research group has devoted its full efforts to carefully completing this draft. Despite the limitations of our knowledge, perspective, social experience, and time, our grasp of China's social issues may be inaccurate, our selection of foreign legislative examples may be inappropriate, and our institutional designs and legal measures may be impractical. Nevertheless, this draft retains its academic significance and practical value. We have decided to publish the full text of the draft for public understanding and reference. If it can serve as a basis for evaluation, review, and improvement of the draft civil code submitted to the Legislative Affairs Commission for formal deliberation, and if it can provide reference for civil judges in lower courts when ruling cases, as well as for students, scholars, and teachers engaged in studying, researching, and teaching civil law in the future, then it will be a great success!
The Property Law stipulates the basic rules governing the ownership relationships of existing property, serving as the premise for market transactions and the foundation of the market economy legal order. Together with the Obligations Law, it forms the two pillars of civil property law. Privileges are rights of control over things, corresponding to the claim rights of obligations over persons. Property rights are divided into full property rights and limited property rights: full property rights refer to ownership, while limited property rights include usufructuary rights and servitudes.