Draft of the Civil Code of China with Explanatory Notes (Property Rights Chapter)

Author: Liang Huixing
Publisher:
Publish Date: 2004-12-01
Features: China has historically implemented an autocratic system and pursued a policy of favoring agriculture over 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 under the pretext of "our criminal laws being too severe and regulations differing," and recommended establishing a "Legal Bureau" to "adopt laws from 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 to "refer to 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 of China, the Beiyang government continued to compile legal codes and completed the "Draft Civil Code of the Republic of China" in 1925. This too was 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, which was formally promulgated and implemented on December 26, 1930. This marked 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 ordered the abolition of the "Six Laws of the Republic of China," including the "Civil Code of the Republic of China." Three attempts to compile a civil code have been made so far. The first two were during 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 for a discussion on drafting 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 appointed 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, 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 group 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 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 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. Adding the "Property Law" chapter (the "Draft Legislative Proposal for the Property Law of China") completed in 1999, the "Draft Civil Code of China" was fully compiled, consisting of 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 on the People's University's Civil and Commercial Law website simultaneously with its submission to the legislative authorities.
The drafting of the draft civil code adopted the Pandects-style system, classifying rules governing civil life relationships into four chapters—property, obligations, family relations, and inheritance—based on legal relationships. Common rules across chapters, such as legal subjects, legal acts, agency, and statutes of limitations, were extracted to form the "General Provisions" chapter, creating 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, which became disproportionate to the other chapters. Therefore, referencing the Dutch Civil Code, the obligations chapter was divided into "General Provisions of Obligations," "Contracts," and "Tort Liability," forming a "dual-layer" structure for the code.
From the drafting system, chapter arrangement, institutional design to the wording of every article, the draft civil code placed particular emphasis on the logicality, systematicity, and operability of the law, aiming to ensure the fairness, consistency of judicial rulings, and 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 references legislative experiences and case law doctrines from developed countries and regions, and aligns with the trends of social progress and legal development. It also ensures coordination with international conventions and practices.
In terms of value orientation, the draft prioritizes a rights-based approach while also considering the public interest. It balances the guarantee of material living conditions with respect for personal dignity. It fully implements the principle of autonomy, emphasizing the practical protection of civil rights, which may only be restricted for the public interest and through legal procedures. It also balances social justice with economic efficiency, as well as transaction security with transaction convenience. The draft fully implements the principles of substantive equality between the sexes and the protection of the vulnerable, providing special protections 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 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. The current legislative system does not yet meet the requirements of scientific and democratic legislation, and the Civil Code Drafting Working Group is merely a nominal body, with expert advice not being 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 civil code. 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 countermeasures may lack practicality. Nevertheless, the draft still holds academic significance and practical value. We have decided to publish the full text of the draft to allow it to be understood and mastered by people from all walks of life. This will serve as a reference for evaluating, reviewing, and improving the draft civil code submitted to the Legislative Affairs Commission for formal deliberation, as well as for judges in civil cases at all levels. It will also provide a reference for students, scholars, and teachers engaged in studying, researching, and teaching civil law in the future.
The Property Law stipulates the basic rules governing existing property relationships, serving as the premise 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 things, corresponding to the claim rights of obligations over persons. Property is divided into absolute and limited property: absolute property refers to ownership, while limited property includes usufructuary rights and servitudes.