Draft of the Civil Code of China with Explanatory Notes · Property Rights Part

Author: Liang Huixing
Publisher:
Publish Date: 2004-12-01
Features: China has historically implemented an autocratic system and pursued a policy of emphasizing agriculture and suppressing commerce. All dynastic legal codes 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 regulations differ," and suggested establishing a "Legal Bureau," "adopting laws from Rome and Britain, the United States, Germany, France, and Japan," and drafting 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 was also never formally promulgated, but the Ministry of Justice had issued orders for all courts to use it as a guideline. In 1927, after the Northern Expedition succeeded, the Nationalist government led by the Kuomintang established the Civil Code Drafting Committee to compile a civil code. On January 1, 1929, it began drafting the civil code, and on December 26, 1930, the "Civil Code of the Republic of China" was completed and promulgated into effect, 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, 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 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 people—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 draft. In September 3, 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 draft 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," establishing 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, the General Principles of Obligations chapter was completed on April 9, the General Principles of Obligations chapter on April 13, the Contracts chapter in mid-May, the Family chapter in mid-August, and the Property chapter (completed in 1999 as the "Draft Legislative Proposal for the Property Law of China"). Together with the completed Property chapter, the "Draft Civil Code of China" was fully compiled, consisting of seven chapters and 1,924 articles. Among them, the General Principles, Property, General Principles of Obligations, and Contracts chapters were formally commissioned by the legislative authorities; the Tort, Family, and Inheritance chapters were not formally commissioned. The draft was published on the People's University's Civil and Commercial Law website simultaneously with its submission to the legislative authorities. The drafting style adopted the (Pandects) system, classifying rules governing civil life relationships into four chapters—Property, Obligations, Family, and Inheritance—based on legal relationships. Common rules across chapters, such as subjects of rights, legal acts, agency, statute of limitations, and periods, were extracted as the General Principles chapter, forming a "General Principles – Specific Provisions" structure for the code. Considering the development of the modern market economy, which has given rise to various new types of contracts and torts, the Obligations chapter has a disproportionately large number of articles compared to other chapters. Therefore, following the Dutch Civil Code, the Obligations chapter was divided into General Principles of Obligations, Contracts, and Torts, creating a "double-layer" structure for the code. From the drafting style, chapter arrangement, institutional design to the wording of each provision, the draft placed special emphasis on the logicality, systematic nature, and operability of the law, aiming to ensure the fairness and uniformity 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, emphasizes the practical protection of civil rights, and restricts them only when justified by the public interest and through legal procedures. It also balances social justice with economic efficiency, transaction security with transaction convenience, and 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. The group is keenly aware that legislative power resides 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 recommendations are not genuinely valued. Therefore, the group does 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 cause of law, the group devoted its full efforts to carefully complete this draft civil code. Despite limitations in knowledge, perspective, social experience, and time, the draft may not perfectly address Chinese social issues or appropriately select foreign legislative examples, and some institutional designs and legal measures may not be entirely practical. Nevertheless, the draft retains its academic significance and practical value. Therefore, the group has decided to publish the full draft publicly. 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 studying, researching, and teaching civil law in the future, 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 transaction relationships 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 things, corresponding to the request rights of obligations over persons. Property is divided into absolute and relative property: absolute property refers to ownership, while relative property includes usufructuary rights and servitudes.