Property Chapter -- Draft Proposal of the Civil Code of China with Explanations (Legislative Examples. Reasons. Explanations. Articles)

Author: Liang Huixing, Editor-in-Chief
Publisher:
Publishing Date: 2005-03-01
Features: China has historically implemented an autocratic system and pursued a policy of prioritizing agriculture over commerce. All dynastic legal codes were criminal law codes, lacking a 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 under the pretext of "our criminal laws being too severe and regulations differing," and recommended establishing a "Legal Bureau" to "adopt laws from Rome, Britain, 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 a civil code began, and by 1910, the "Draft Civil Code of the Great Qing" was completed. However, it was never 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. This too was never formally promulgated but was used by the Judicial Department as guidelines for judicial decisions. After the successful Northern Expedition in 1927, the Nationalist government led by the Kuomintang established the Civil Code Drafting Committee in January 1929 to compile a civil code. On December 26, 1930, the "Civil Code of the Republic of China" was completed and promulgated, 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." Three attempts have been made to compile a civil code so far. The first two were in 1954–1956 and 1962–1964, both interrupted by political movements. The third attempt began in 1979 and, by 1982, the "Draft Civil Code of the People's Republic of China (Volumes I–IV)" had been drafted. 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 for a discussion on the drafting of a civil code. They unanimously agreed that the conditions for drafting a 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 Civil Code Drafting Working Group held its first meeting to discuss 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, Chinese Academy of Social Sciences. The resolution was 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 China Social Science Fund project "Research on the Legislative Process of the Civil Code of China," forming a 25-member "Research Group on the Legislative Process of the Civil Code of China" 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" 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, and the "Family Relations" chapter in mid-August. Adding the "Property Law" chapter completed in 1999 ("Draft Legislative Proposal for the Property Law of China"), 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 officially commissioned by the legislative body, while the "Tort," "Family Relations," and "Inheritance" chapters were not. The draft was published on the People's University's Civil and Commercial Law website simultaneously with its submission to the legislative body. The drafting adopted the Pandeckten system, classifying rules governing civil life relationships into four chapters: Property Law, Obligations, Family Relations, and Inheritance. Common rules across chapters, such as legal subjects, legal acts, agency, and statutes of limitations, were extracted as the "General Provisions" chapter, forming a "general provisions – specific provisions" structure for the code. Given the development of modern market economies, various new types of contracts and torts have emerged, leading to a significant increase in the number of articles in the obligations chapter, disrupting the balance with other chapters. Therefore, referencing the Dutch Civil Code, the obligations chapter was divided into "General Provisions of Obligations," "Contracts," and "Torts," 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, systematicity, and operability of the law, aiming to ensure the fairness, consistency of judicial decisions, and predictability of legal consequences for citizens. 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, adapting to 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 protection of material living conditions with respect for personal dignity, fully implements the principle of autonomy, emphasizing the practical protection of civil rights, and restricts them only when justified by the public interest and legal procedures. It also balances social justice with economic efficiency, as well as transaction security and convenience. The draft fully upholds the principle of substantive equality between the sexes and the protection of vulnerable groups, providing special protection for workers, consumers, women, children, the elderly, and the disabled. It focuses not only on addressing China's current social issues 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 familial 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 body, 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 nominal body, and expert advice is not truly valued. Therefore, we do not expect this draft civil code to be adopted by the legislative body. 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 group has devoted its full efforts to meticulously completing this draft. Despite the limitations of our knowledge, perspective, social experience, and time, and despite potential inaccuracies in our understanding of China's social issues or inappropriate choices in foreign legislative examples, as well as unrealistic institutional designs and legal countermeasures, the draft still retains its academic significance and practical value. Therefore, we have decided to publish the full draft for public reference. If it can be understood and mastered by people from all walks of life, serving as a reference for evaluating, reviewing, and improving the draft civil code submitted to the Legislative Affairs Commission for formal deliberation, and providing guidance for civil judges in courts at all levels, 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 prerequisite for market transactions and the foundation of the legal order of the market economy. Together with the Obligations Law, it forms the two pillars of civil property law. Privileges are rights of control over property, corresponding to claims over persons under the Obligations Law. Property rights are divided into absolute and limited property rights: absolute property rights refer to ownership, while limited property rights include usufructuary rights and servitudes.