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

Author: Liang Huixing, Editor-in-Chief
Publisher:
Publishing Date: 2004-12-01
Features: China's history has been governed by autocratic systems and has implemented policies favoring agriculture over commerce. All dynastic legal codes were criminal law codes, lacking modern civil law. The idea of drafting 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 extraterritorial rights, citing "our criminal laws being too severe and regulations differing." He recommended establishing a "Legal Bureau," "adopting laws from Rome, 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 drafting of the 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 drafting legal codes and completed the "Draft Civil Code of the Republic of China" in 1925. This was also never formally promulgated but was used as guidelines by courts. After the successful Northern Expedition in 1927, the Nationalist government led by the Kuomintang established the Civil Code Drafting Committee in January 1929 to draft the 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. Three attempts to draft a Civil Code have been made 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 drafting 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 drafting 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 drafting the Civil Code. In March of the same year, 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 of the same year, the second meeting of the Civil Code Drafting Working Group discussed three 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 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 "Legislative Research on the Civil Code of China," forming a 25-member "Legislative Research Working Group on 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 on April 9, the General Principles of Obligations on April 13, the Contracts chapter in mid-May, and the Family chapter in mid-August. Adding the Property chapter completed in 1999 ("Draft Proposal for the Property Law of China"), the "Draft Civil Code of China" was fully completed, comprising 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, while the Tort, Family, and Inheritance chapters were not. The draft was published on the Civil and Commercial Law Network of Renmin University of China while being submitted to the legislative authorities. The drafting adopted the Pandects-style system, classifying rules governing civil life relationships into Property, Obligations, Family, and Inheritance chapters based on legal relationships, then extracting common rules such as legal subjects, legal acts, agency, statute of limitations, and periods of time to form the General Principles chapter, creating a "General Principles – Specific Provisions" structure. Considering 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, making it disproportionate to the other chapters. Therefore, referencing the Dutch Civil Code, the Obligations chapter was divided into General Principles of Obligations, Contracts, and Torts, forming a "double-layer" structure. The draft placed special 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. 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 society, extensively references legislative experiences and case law from developed countries and regions, follows the trends of social progress and legal development, and maintains consistency with international conventions and practices. In terms of value orientation, it prioritizes a rights-based approach while also considering public interests, balances the protection of material living conditions with respect for human dignity, fully implements the principle of autonomy, emphasizes the protection of civil rights, and restricts them only for public interests and legal procedures. It also balances social justice and economic efficiency, as well as transaction security and convenience. The draft fully implements 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 familial household life 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 team are fully aware that legislative power lies 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, and expert recommendations are 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 team has devoted its efforts to carefully completing this draft. Despite limitations in knowledge, perspective, social experience, and time, which may lead to inaccuracies in addressing China's social issues or inappropriate choices in foreign legislative examples, or impractical institutional designs and legal measures, the draft still holds academic significance and practical value. Thus, the full text of the draft has been published 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 and 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 of existing property, serving as the prerequisite 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 property, corresponding to claims over people in obligations. Property is divided into absolute and limited property: absolute property refers to ownership, while limited property includes usufructuary rights and servitudes.