Xie Hongfei: The Compilation Process and Vision of the Chinese Civil Code

Civil law regulates the two most basic social relations—personal relations and property relations. The compilation of the Civil Code will help improve the country’s governance capacity and governance efficiency at the national level, and it will help strengthen the society’s self-governance capacity in the social field.

In the compilation of the Civil Code, it is necessary to properly handle the three aspects of the relationship between the universal and the local, the times and traditions, the basic law and the special law, and formulate a book that fits the life of the Chinese people, reflects the spirit of the times, has reasonable content, rigorous structure and clear layers. Civil Code.

Civil Code has the status of basic social law

As an “encyclopedia of life”, civil law reveals the basic structure and operating principles of human society, and demonstrates the common values ​​of human society.

Civil law regulates the two most basic social relations—personal relations and property relations. At the national level, civil law urges the state to change the way of governance through power from top to bottom and improve the country’s governance capacity and efficiency; in the social field, civil law provides a sound market economy legal system to encourage transactions, and promote public welfare through the non-profit legal person system. The development of careers and other non-profit undertakings strengthens the self-governance ability of the society and enhances the harmony of family relationships; in the personal world, it gives the individual a broad space for the free development of personality, helping to achieve diverse life pursuits. It is precisely because of the basic role played by the Civil Code in society that it is qualified to become the basic law of society and lay the foundation for all private laws.

From the perspective of the basic social law, the Chinese Civil Code can carry the following expectations and visions.

One is to play the function of “half constitution”. A very crucial function of the Civil Code is to implement the basic constitutional rights of citizens, to refine and categorize them in the civil field, and to provide detailed rules for confirmation and protection. The richer and more detailed the types of rights stipulated in the Civil Code, the more it can limit the abuse of public power. Subjects of civil rights can independently decide whether and how to exercise their rights; civil rights are protected by law and can be excluded from infringement by any other person, including rights not infringed by other civil subjects or by state powers. Therefore, the compilation of the Civil Code is also regarded as “a major measure to modernize the national governance system and governance capacity”.

The second is to condense the moral consensus of the Chinese people, to present the Chinese people’s values ​​and practical rationality, and to reserve space for the development of the future society. As the basic law in the social field, the Civil Code must reveal the core part of the Chinese people’s life and world, and present the important social interaction rules and practical rationality of the Chinese people. The most critical part is undoubtedly moral consensus, values ​​and cultural symbols and other spiritual elements. The Civil Code should inject these spiritual elements into specific systems and rules, properly balance the interests of all parties, and grant rights and interests. Allocate risks and obligations. Of course, the biggest dilemma of human beings in the field of value is the conflict of different values. For a specific civil relationship, how to balance and adjust the rights and obligations between the parties through the design of specific rules and systems is undoubtedly a problem faced by the legislators of the Civil Code. Major problems and challenges. Only when it is close to the people’s life concepts and behaviors can the Civil Code truly become the “encyclopedia of life” for the Chinese people.

The General Principles of Civil Law laid the foundation of the Civil Code

There is no doubt that the degree of development of the civil rule of law depends on the degree of political, economic, social and cultural development of a country, and in turn, the civil rule of law also affects the level of political, economic, social and cultural development of a country. After 1949, the New China organized the compilation of the Civil Code four times in 1954, 1962, 1979, and 2002, but they were all unsuccessful due to economic, political, social, and academic constraints. Due to the immature time for the compilation of the Civil Code, China only passed the General Principles of Civil Law in 1986, which stipulates general rules in various civil fields and can be described as a “miniature” Civil Code. Since then, the rule of law in China’s civil field has developed by leaps and bounds, entering a 30-year period when the civil rule of law system was fully established. In the field of property relations, the Guarantee Law, Contract Law, Property Law and Tort Liability Law have been promulgated successively; in the field of personal relations, the Marriage Law has been revised, and the Adoption Law has been promulgated and revised. In addition, judicial interpretations and some public laws in the civil field have also enriched China’s civil law norms.

In October 2014, the “Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Promoting the Governance of the Country by Law” proposed to “strengthen the construction of the market legal system and compile the Civil Code”. In March 2015, the compiling work of the Civil Code was officially determined, under the responsibility of the Legal Affairs Committee of the National People’s Congress. .

On March 15, 2017, the Fifth Session of the Twelfth National People’s Congress adopted the General Provisions of Civil Law. This means that the compilation of the Chinese Civil Code has taken the most crucial and important step, laying the foundation stone for the completion of the entire Civil Code Building. Among the various parts of the Civil Code, the General Provisions of the Civil Law, as the opening work of the Civil Code, governs all the provisions.

On the basis of the “General Principles of Civil Law” and other separate laws, the “General Principles of Civil Law” concentrates on the values ​​and basic principles of the entire Civil Code, such as the protection of private rights, private law autonomy, good faith, public order and good customs, etc. It is worth mentioning that it The green principle was introduced into the civil code for the first time, which is an important breakthrough to the traditional civil law rules with freedom as the core.

The “General Principles of Civil Law” clearly stipulates the legal origin of civil law for the first time. It no longer regards policy as the source of civil law, and divides the source of law into two levels: first, if there are legal provisions, the law is applied; This provision is of great value and will have far-reaching implications. Civil law itself is an expression of custom. In the absence of explicit provisions in the law, the use of custom as the source of the law demonstrates the state’s stance on yielding to society, respecting tradition, and caring for the culture of the people, which can make the people feel close to the law. Respecting habits also cherishes the people’s endless drive to innovate. It also shows that, in addition to the mandatory institutional changes enforced by state law, the state also recognizes the induced institutional changes formed spontaneously by society.

The General Principles of Civil Law conforms to the social reality that the country and society have undergone double transformation since China’s reform and opening up, meets the new requirements emerging in China’s state and social governance, and responds to the new challenges posed by science and technology and economic development to the law. There are many new highlights. If it is clearly stipulated, the personal information of natural persons is protected by law, commercial practice can be recognized as a source of law, and the classification of legal persons is determined as for-profit legal persons and non-profit legal persons.

The General Provisions of the Civil Law, as the opening chapter of the Civil Code, not only laid the foundation of the Civil Code, but also laid the foundation for social governance and the “comprehensive and free development” of individuals.

Resolve three pairs of relationships:

Challenges to the Codification of Parts of the Civil Code

According to the legislative plan, the compilation of the Civil Code adopts a “two-step” approach. The first step is that the “General Provisions of the Civil Law” has been implemented. The second step is to compile the various sub-divisions of the Civil Code. It is planned to be submitted to the Standing Committee of the National People’s Congress for deliberation in the first half of 2018, and strive to combine the various sub-divisions of the Civil Code in March 2020. It is submitted to the National People’s Congress for deliberation and approval.

Currently, the Legislative Affairs Committee of the Standing Committee of the National People’s Congress is in the process of compiling sub-rules of the Civil Code. The controversy over the Civil Code boils down to how to deal with three pairs of important relationships in the Civil Code:

Universal and Indigenous

After a long historical accumulation, civil law has formed a fairly solid foundation, and the certainty of many contents is even comparable to that of natural science. Although the compilation of the Chinese Civil Code can copy the principles, concepts, systems and rules of Western civil law, the Civil Code, as an “encyclopedia of life”, must take care of China’s inherent social soil. Among them, the Chinese elements that should cause the most concern are mainly reflected in two aspects:

First, the family system and order. The inherent Chinese culture emphasizes the harmony and stability of the family. The emotional ties between family members are maintained and consolidated by blood and love, which basically excludes the contractual relationship between members. The Civil Code should firstly give the family the legal subject status in a specific field; secondly, according to the inherent Chinese culture, the rules of rights and obligations between family members should be designed in line with the Chinese concept, such as whether the joint debt of husband and wife should be subject to the same rules as the joint property of husband and wife. , whether the issue of betrothal gifts should be included in the adjustment of civil law and how to adjust it, and to what extent the scope of legal heirs should be expanded.

Second, the land rights system. According to China’s current law, both urban land and rural land in China are under public ownership. Urban land is owned by the state, and rural land is collectively owned by farmers (which belong to collective economic organizations, village committees, village groups, etc., depending on the situation). This is completely different from the land system in the foreign paradigm of civil code, and it can be described as the biggest feature of China’s civil property relations. At present, the central government has put forward a reform plan for the “separation of three rights” of ownership, contract rights and management rights for the realization of rural land rights. How to arrange the nature and power of the management right will be a major problem in the compilation of the Chinese Civil Code. The Chinese Civil Code must make arrangements for land rights with Chinese characteristics, especially the targeted design of the rural land rights system.

times and traditions

Compared with the traditional civil code, the background of China’s compiling the civil code has undergone tremendous changes. It can be said that it has jumped from the agricultural era and the simple industrial era to the Internet era. The characteristics of the era of the Chinese Civil Code should at least pay attention to the following aspects:

One is the impact of information technology represented by the Internet on civil rights (especially personality rights) and transaction rules. The General Provisions of the Civil Law make general provisions on the protection of personal information, data, and virtual property, and the specific content can be further clarified by special laws. However, whether the Civil Code should make special provisions for transactions conducted through the Internet, especially the formulation of special rules for Internet contracting and infringement, in order to reflect the characteristics of the Civil Code of the times, it is worth further consideration.

The second is the challenge of the modern risk society to the protection of the rights of civil subjects. For example, no-fault liability in the field of highly dangerous activities and highly dangerous goods; tort liability has gradually changed from emphasizing freedom of action to emphasizing the protection of private rights; from focusing on compensation and relief after the event to focusing on preventing damage beforehand; It is committed to building a comprehensive relief system including tort liability, public fund relief and commercial insurance.

The third is the change of family concept and the challenge of the development of reproductive technology to traditional family law. A large number of contractual co-living relationships between men and women are based on agreement but not for the purpose of forming a family, which undoubtedly has a strong impact on the traditional concept of family law. The reduction in the size of modern families and the increase in the types of social services have also had a huge impact on traditional guardianship and marriage systems. The development of reproductive technology is challenging the traditional civil subject and parent-child relationship. The Civil Code cannot turn a deaf ear to these dramatic changes in social reality.

Another feature of the era that should be paid attention to in the Civil Code has strong Chinese characteristics, that is, the rapid rise of the non-public economy. This requires that the Civil Code generally recognizes the equal legal status of the public and non-public economies in all fields. The Property Law clearly stipulates the equal protection of the property rights of various subjects, and the General Principles of the Civil Law further expands the scope of equal protection to all property rights. The specific task facing the Civil Code is how to implement equal protection between subjects in the fields of ownership and usufructuary.

Basic Law and Special Law

The latest trend in the development of modern civil codes is that various special civil laws emerge one after another. Because of the rise of special civil laws, the scope of application of civil codes has been greatly reduced. In China, this problem is mainly reflected in two aspects:

First, the boundary between civil law norms and public law regulatory norms is unclear. One of the problems with Chinese civil law is the addition of numerous public law norms, especially the state’s regulatory norms over the economy. Although the state controls the economy is the norm in modern society, and there are legitimate reasons (such as environmental protection, personal safety, etc.) to support, but in terms of legislative technology, since China has formed two different legal systems, public law and private law, the content of state control Cheap should not be included in the Civil Code. In order to distinguish the national control norms from the autonomous norms of the Civil Code, and at the same time realize the different normative intentions of the two, the Civil Code can adopt causative norms to incorporate into the public law, but it is not necessary to reiterate the content of the public law in the Civil Code. The public law provisions caused by the Civil Code mainly include several aspects: First, the introduction of statutory restrictions on ownership in the field of property law, that is, the statutory obligations exercised by the public law, such as compliance with environmental protection rules, etc.; Second, the introduction of public law control in the field of contract law The third is to introduce public law norms in the field of tort law to strengthen the protection of victims.

Second, the relationship between civil law and social regulatory norms (such as the protection of consumers and workers based on consumer welfare and worker welfare) is unclear. Because the latter has not yet been finalized, with the continuous changes in social and economic situations, it is not suitable for the Civil Code to include such protective norms for specific groups or roles at present, in order to maintain the stability of the Civil Code and its status as the basic law of society. In terms of legislative technology, legislators can formulate separate civil laws when they need special protection for specific groups of people or transaction roles based on social situation considerations. As the basic law of society, the Civil Code has a high degree of stability and should not be involved in areas with great changes. However, for some civil areas where the country should perform the obligation of administrative payment, such as the guardianship of minors and other vulnerable groups, the Civil Code can provide for the state guardianship system to reflect the country’s governance ethics and humanistic care.

The adoption of the “General Provisions of Civil Law” indicates that China will soon have its own Civil Code, and China’s “Civil Code Dream” is about to come true. Of course, the compilation of the Chinese Civil Code should make full use of the advantages of latecomers to formulate a Civil Code that is in line with the life of the Chinese people, reflects the spirit of the times, has reasonable content, rigorous structure and distinct layers. In the civil field, China’s formal rule of law has not yet been realized, and there is still considerable room for improvement in the stability and predictability of the law. Providing reasonable rules suitable for economic, technological and social development is the natural pursuit of the Civil Code. At the level of civil substantive rule of law, it is worthy of pursuit to determine the boundary between civil rights and state power, to explore the practical rationality of the Chinese people, to cultivate good humanity, and to settle people’s hearts and lives.

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