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 extraterritorial rights, citing the reason as "our criminal laws are too severe and regulations differ," and suggested establishing a "Legal Bureau," "adopting laws from Rome and the United Kingdom, the United States, Germany, France, and Japan," and drafting civil and commercial laws, which were "traditionally absent." 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 of China, the Beiyang government continued the compilation of legal codes and completed the "Draft Civil Code of the Republic of China" in 1925. It was also never formally promulgated, but the Ministry of Justice had issued orders for all courts to use it as a reference. 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, the committee began drafting the civil code, and on December 26, 1930, the "Civil Code of the Republic of China" was completed and promulgated into effect. It was the first civil code in Chinese history.
In 1949, the People's Revolution led by the Communist Party of China succeeded, establishing the People's Republic of China. 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, it was suspended due to a change in legislative policy.
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 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 Proposal for the Property Law of China" and the "Outline Draft for 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," establishing a 25-member "Legislative Research Working Group on the Civil Code of China" based on the original "Property Law Research Group." Following the "Outline Draft for 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, the "Family Relations" chapter in mid-August. Adding the "Property Law" chapter (the "Draft Proposal for the Property Law of China") completed in 1999, 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 formally commissioned by the legislative authorities, 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 authorities. The drafting style adopted the Pandects system, classifying rules governing civil life relationships into four chapters—Property Law, Obligations, Family Relations, and Inheritance—based on legal relationships. Common rules across chapters, such as subjects of rights, 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 the modern market economy, various new types of contracts and torts have emerged, leading to a dramatic increase in the number of articles in the obligations chapter, making it disproportionate to the other chapters. Therefore, following the Dutch Civil Code, the obligations chapter was divided into "General Provisions of Obligations," "Contracts," and "Torts," forming a "double-layer" structure for the code. From the drafting style, chapter arrangement, institutional design to the wording of every 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 references legislative experiences and case law doctrines from developed countries and regions, aligns with the trends of social progress and legal development, and maintains consistency 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, fully implements the principle of autonomy, and emphasizes the practical protection of civil rights, restricting them only when justified by the public interest and through legal procedures. It also balances social justice with economic efficiency, as well as transaction security and convenience. The draft firmly 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 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 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 team are fully aware that the authority to legislate lies with the legislative authorities, and the current legislative system does not yet meet the requirements of legislative science and democracy. The Civil Code Drafting Working Group is merely a name with no real influence, and expert suggestions 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 full efforts to carefully completing this draft. Despite the limitations of our knowledge, perspective, social experience, and time, and despite potential inaccuracies in our understanding of Chinese social issues or in the selection of foreign legislative examples, as well as the impracticality of some institutional designs and legal measures, the draft still holds academic significance and practical value. Thus, we have 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 and for students, scholars, and teachers studying, researching, and teaching civil law in the future, then it will be a great success!
The Property Law stipulates the basic rules governing existing property relationships, serving as the premise 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 things, corresponding to claims against persons under the Obligations Law. Property rights are divided into absolute and inalienable property rights: absolute property rights refer to ownership, while inalienable property rights include usufructuary rights and servitudes.