Comparative Study on the Modernization of Civil Law in China and Japan

Author: Meng Xiangpei
Publisher:
Publishing Date: 2006-09-01
Features: The term "modernization of civil law" refers to the process by which a country, in alignment with its political and economic modernization, directly or indirectly emulates the civil code compiled in 19th-century Europe, gradually establishing a civil legal system adapted to capitalist development. This paper treats the "Draft Civil Code of the Great Qing" and Japan's "Old Civil Code" as markers of the beginning of civil law modernization in both nations, while the "Civil Code of the Republic of China" and Japan's Meiji Civil Code are regarded as markers of its completion.
Chapter 1 compares the backgrounds of civil law modernization in China and Japan, concluding that the similarities between the two lie in: the sharp contradictions between social politics, economic development, and traditional legal systems, which were the fundamental reasons driving legal reforms in both China and Japan; and the urgent need to abolish unequal treaties and reclaim extraterritorial rights, which were the direct motivations for these reforms. The differences are: the different levels of economic development between the two countries; the distinct purposes of legal reform pursued by their ruling groups; the varying ideological and legal concepts among the public and intellectuals in both nations; and the differences in the training and preparation of judicial personnel, which determined the divergent trajectories and outcomes of civil law modernization in both countries.
Chapter 2 compares the "Draft Civil Code of the Great Qing" and Japan's "Old Civil Code," which serve as markers of the beginning of civil law modernization in China and Japan, respectively. In terms of legislative principles, the late Qing legal reforms emphasized learning from Western modern law while maintaining feudal traditions such as the "Three Cardinal Guides and Five Constant Virtues." Japan's Meiji government, however, was solely focused on modeling its legal system after the West, striving to establish a capitalist legal framework. In legislative processes, both governments hired foreign legal scholars to draft the property law sections of the codes, while entrusting the drafting of personal law sections to domestic scholars. However, the influence of foreign experts extended beyond property law. While both legislative bodies invested significant human and material resources in investigating domestic civil customs, the results of these investigations had little impact on the drafting of the codes. In terms of structural composition, both countries adopted the principle of civil and commercial law separation, drafting separate civil and commercial codes. The differences were: the "Draft Civil Code of the Great Qing" used the Pandekein system of codification, while Japan's "Old Civil Code" inherited the Roman legal structure. In terms of content and characteristics, as markers of the beginning of civil law modernization, both the "Draft Civil Code of the Great Qing" and Japan's "Old Civil Code" exhibited clear progressiveness compared to their feudal legal systems, yet they were relatively conservative and backward compared to bourgeois concepts of "freedom," "equality," and "human rights." At the same time, both codes extensively adopted the civil law content of multiple Western countries, showing a notable hybridity, while also creating unique legal institutions tailored to their national contexts, demonstrating a degree of originality. Compared to the civil codes of the later periods of civil law modernization in both countries, these two codes had a significant pioneering nature. Tracing their origins, Japan's "Old Civil Code" was based on the French Civil Code, while the "Draft Civil Code of the Great Qing" was based on Japan's Meiji Civil Code. In terms of influence and evaluation, the "Draft Civil Code of the Great Qing" was the first capitalist modern civil code in Chinese history, laying the foundation for the modernization of Chinese civil law. Japan's "Old Civil Code" had a significant impact on the compilation of the Meiji Civil Code, judicial practices at the time, and the development of Japanese jurisprudence, serving as a cornerstone of Japan's civil law modernization.
Chapter 3 provides a detailed discussion of the "Civil Code Draft of the Republic of China," which played a transitional role in the historical process of Chinese civil law modernization. It argues that compared to the "Draft Civil Code of the Great Qing," the "Civil Code Draft of the Republic of China" placed greater emphasis on absorbing and retaining domestic legal traditions, with the personal law section more heavily influenced by feudal Chinese ethics. The use of legal concepts and terminology was more scientific and rational, and the management of foreign legal persons was strengthened. Although the "Family and Inheritance" sections of the "Civil Code Draft of the Republic of China" retained excessive feudal elements, it would be simplistic to label them as "conservative," "regressive," "reactionary," or "backward." To adapt to domestic customs and ensure the effectiveness of the code, the legislative body temporarily sacrificed a degree of progressiveness for a certain level of compromise, even conservatism, which was sometimes a wise choice in response to the times.
Chapter 4 compares the "Civil Code of the Republic of China" and Japan's Meiji Civil Code, which serve as markers of the completion of civil law modernization in China and Japan, respectively. In terms of legislative background, the Nanjing Nationalist government, at least nominally, unified the country, establishing a coalition regime of landlords, officials, and compradors, with capitalist economy achieving certain development. However, China's social nature remained semi-colonial and semi-feudal. Japan's Meiji government represented the interests of large landlords and capitalists. With the formation of domestic capitalism and the intensification of overseas expansion, Japan gradually transitioned into an imperialist stage, becoming an important member of the international imperialist system that exploited the Eastern nations. In terms of legislative principles, the Nanjing Nationalist government, guided by the "Three Principles of the People," emphasized a social orientation and advocated gender equality. Japan's Meiji Civil Code, on the other hand, emphasized revisions based on the "Old Civil Code." In terms of legislative processes, both codes were drafted independently by domestic scholars, with the compilation of the "Civil Code of the Republic of China" reflecting the Nanjing Nationalist government's policy of "party governance" during the period. In terms of structural composition, both codes adopted the German Pandekein system of codification, but there were three differences: the names of the "Debt" section in the "Civil Code of the Republic of China" differed from the "Debt" section in Japan's Meiji Civil Code; the order of the sections was different, with the "Civil Code of the Republic of China" placing the debt section before the property section, while Japan's Meiji Civil Code did the opposite; and the "Civil Code of the Republic of China" adopted the principle of civil and commercial law unification, while Japan's Meiji Civil Code adopted the principle of separation. In terms of characteristics, both codes placed significant emphasis on absorbing domestic legal traditions and customs, while also incorporating advanced Western civil institutions. The family and inheritance systems were both innovative yet retained considerable feudal elements. Meanwhile, the "Civil Code of the Republic of China" limited the principles of absolute ownership and free contract in the name of maintaining public order and good customs, introduced the principle of no-fault liability, reduced the responsibilities of obligors on a case-by-case basis, and emphasized the application of the principle of equality, fully reflecting the protection of public interests.
Chapter 5 compares the completion and beginning phases of civil law modernization in China and Japan. First, it provides a detailed comparison of the "Civil Code of the Republic of China" and the "Draft Civil Code of the Great Qing" by section, highlighting their differences. Second, it compares the Meiji Civil Code and the "Old Civil Code," arguing that while the Meiji Civil Code was based on the "Old Civil Code," it underwent "fundamental revisions," and the relationship between the two should neither be ignored nor exaggerated. Finally, through a comprehensive comparison of the completion and beginning phases of civil law modernization in China and Japan, it points out that unlike the beginning phase, the compilation of the "Civil Code of the Republic of China" and Japan's Meiji Civil Code was supported by the development of politics and economy, the advancement of jurisprudence, extensive and in-depth legal transplantation, and a correct attitude toward domestic legal traditions and customs, all of which provided direction and form guarantees for the completion of civil law modernization. At the same time, the implementation of these two civil codes and their impact on later generations highlighted the practical significance of the completion of civil law modernization. Therefore, the "Civil Code of the Republic of China" and Japan's Meiji Civil Code can be regarded as markers of the completion of civil law modernization in China and Japan, respectively.
Chapter 6 compares the major debates that emerged during the modernization of legal systems in China and Japan—the "Ritual-Law Debate" during the late Qing and Japan's "Code Debate." By analyzing the causes of these debates, it concludes that the "Ritual-Law Debate" in the late Qing was inevitable due to the dual nature of the Qing government's guiding principles for legal reform, the coexistence of multiple economic components and class forces, the conflict between new and old ideas during social transformation, and the contradiction between Western legal systems and traditional feudal Chinese law. The inevitability of Japan's "Code Debate" lies in: the pre-existing in legislative principles before the compilation of the "Old Civil Code," which foreshadowed the debate; the inherent defects in the "Old Civil Code" itself, which directly triggered the debate; the existence of different schools of jurisprudence in Japan, which provided conditions for the debate; the anti-Western sentiment, which accelerated the debate; and the complex political struggles, which further propelled the development of the debate. The two debates differed in their subjects, focal points, arguments, media, essence, outcomes, and impacts. The "Ritual-Law Debate," on the surface, was a dispute between feudal scholars within the late Qing ruling group, but in essence, it was a clash between emerging bourgeois thought and traditional feudal thought. The "Code Debate," on the surface, was a debate between bourgeois new ideas and feudal old ideas, but in essence, it was a debate between different factions within the bourgeoisie.
Chapter 7 reflects on several issues related to civil law modernization in China and Japan. This chapter first summarizes the characteristics of civil law modernization in China and Japan as follows: the urgent need to reclaim extraterritorial rights was the direct motivation for civil law modernization in both countries; the state's public power was the basic driving force; extensive transplantation of Western modern civil law was the fundamental approach; the flourishing of domestic jurisprudence and legal talent was an important guarantee for the realization of civil law modernization; and the integration of modern civil law with reality was a long-term task left for future generations by civil law modernization. Second, it examines the relationship between civil law modernization and legal traditions and civil customs, emphasizing the importance of incorporating domestic legal traditions and customs into civil legislation. Third, it studies the relationship between civil law modernization and legal transplantation, arguing that legal transplantation is one of the laws of legal development. It is necessary to oppose narrow-minded attitudes such as self-satisfaction, arrogance, exclusivity, and the rejection of foreign culture, as well as the idea of wholesale Westernization, which involves self-doubt, blind worship of foreign culture, and indiscriminate copying of Western law. Finally, it explores the relationship between civil law modernization and political, economic, and cultural factors, pointing out that economic development is the material foundation for civil law modernization, political reform is a necessary prerequisite, the establishment of modern ideological and cultural concepts is a guarantee for the smooth progress of civil law modernization, and the ability to harmonize domestic legal traditions with foreign legal culture is the key to determining the success or failure of civil law modernization.