Looking Back and Thinking Forward: The Current Round of Civil Law Codification in China
| Author | Siyi Lin |
| Position | Ph.D. Candidate, Faculty of Law, The Chinese University of Hong Kong, NT, Hong Kong. Tel: +852 52227341; Email: siyilin@link.cuhk.edu.hk. I would like to express my sincere gratitude to Professor Lutz-Christian Wolff for his supervision and support; I am grateful to Ms. Jenny Ying Chan for reading through an earlier draft of this article and... |
| Pages | 439-467 |
Looking Back and Thinking Forward:
The Current Round of Civil Law
Codification in China
S
IYI
L
IN
*
A civil code is a key feature of a civil law jurisdiction.
1
But despite being a
civil law jurisdiction, the People’s Republic China lacks a unified civil code.
2
On March 15, 2017, China promulgated the General Provisions of Civil
Law—the opening chapter of the Chinese Civil Code planned for enactment
in 2020.
3
Over the last hundred years or so, several attempts were made to
introduce a civil code in China.
4
The genesis of Chinese civil codes can be
traced back to 1911 when the Draft Civil Code of the Great Qing Dynasty
was written.
5
After the Communist Party of China (CCP) came to power in
1949, the country initiated several rounds of codification to create a single
comprehensive civil code, but none succeeded for various complicated
reasons.
6
Codifying a civil code is a titanic project that takes tremendous
effort, time, and money.
7
Although the forthcoming Chinese Civil Code has
been put on the legislative agenda, the legislative process will not be smooth
* Ph.D. Candidate, Faculty of Law, The Chinese University of Hong Kong, NT, Hong
Kong. Tel: +852 52227341; Email: siyilin@link.cuhk.edu.hk. I would like to express my sincere
gratitude to Professor Lutz-Christian Wolff for his supervision and support; I am grateful to
Ms. Jenny Ying Chan for reading through an earlier draft of this article and providing insightful
comments and suggestions. This article was first presented at the 13th Annual Conference of
the European China Law Studies Association on 14 September 2018. I would like to thank all
the participants for the helpful discussions.
1. Key Features of Common Law or Civil Law Systems, PPPLRC (Sept. 6, 2019), https://
ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment/
legal-systems/common-vs-civil-law.
2. Ashwin Kaja, China Moves Towards a Unified Civil Code, G
LOBAL
P
OL
’
Y
W
ATCH
(May 2,
2017), https://www.globalpolicywatch.com/2017/05/china-moves-towards-a-unified-civil-
code/.
3. Laney Zhang, China: First Step Towards Adoption of a New Civil Code, L
AW
L
IBR
. C
ONGRESS
(Mar. 30, 2017), https://www.loc.gov/law/foreign-news/article/china-first-step-towards-
adoption-of-a-new-civil-code/.
4. Ge Jiangqiu & Luo Liuhu, Chinese Civil Code: Background, History and Current Situation,
M
AASTRICHT
E
UR
. P
RIV
. L. I
NST
. (Nov. 12, 2014), http://www.mepli.eu/2014/11/chinese-civil-
code-background-history-and-current-situation/.
5. Xiaoqun Xu, Law, Custom, and Social Norms: Civil Adjudications in Qing and Republican
China, 36 L. & H
IST
. R
EV
. 77, 77 (2018).
6. Ge Jiangqiu & Luo Liuhu, supra note 4.
7. Dirk Heirbaut, Factors Ensuring the Success or Failure of Draft Codifications. Some European
Experiences, in T
OWARDS A
C
HINESE
C
IVIL
C
ODE
: C
OMPARATIVE AND
H
ISTORICAL
P
ERSPECTIVES
61, 61 (Lei Chen & C.H. (Remco) van Rhee eds., 2012).
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
440 THE INTERNATIONAL LAWYER [VOL. 52, NO. 3
sailing. The purpose of this article is to summarize the past experiences to
assist the current lawmakers in the enactment of the new Chinese Civil
Code. This article adopts a historical approach to analyze the successes and
failures of previous codification efforts. Furthermore, it draws on the past as
a way to analyze the current wave of civil law codification. Finally, the
article highlights the potential challenges legislators may face with respect to
the drafting process.
I. Introduction
With regard to legal tradition, China has long belonged to the family of
civil law relying on statutory codes as the sources of law.
8
Since the
establishment of the People’s Republic of China (“PRC” or “China”) in
1949, China has experimented with unified civil codes for decades and
initiated four rounds of civil law codification, all of which have failed.
9
Despite the recurring failures, China embarked on a new round of civil
codification in 2014 after the CCP vowed to build a country with a “socialist
rule of law” and proposed a plan to codify a Chinese civil code.
10
On March
15, 2017, China promulgated the General Provisions of the Civil Law
(“General Provisions”)
11
—the opening chapter of the Chinese Civil Code
that is to be enacted in 2020, which represents a milestone in the process of
civil law codification in China.
12
Failure is more common than success for civil law codification projects.
13
Although civil law codification has been put on the legislative agenda with
the CCP’s full support, the codification is still a titanic, fraught, and often
8. Xianchu Zhang, China: Exploring an Alternative of Commercial Code in the Course of Civil
Codification, in C
ODIFICATION IN
E
AST
C
HINA
: S
ELECTED
P
APERS FROM THE
2
ND
IACL
T
HEMATIC
C
ONFERENCE
105 (Wen-Yeu Wang ed., 2014).
9. J
IANFU
C
HEN
, C
HINESE
L
AW
: C
ONTEXT AND
T
RANSFORMATION
332 – 36 (rev. ed.
2015).
10. The CCP made the call for civil law codification work in the “Decision of the CCP
Central Committee on Some Major Issues Concerning Comprehensively Advancing the Rule of
Law” ( ), which was adopted on October
23, 2014, by the 4th Plenary Session of the 18th Central Committee of the CCP. An English
translation is available at https://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-
central-committee-decision-concerning-some-major-questions-in-comprehensively-moving-
governing-the-country-according-to-the-law-forward/.
11. Zhonghua Renmin Gongheguo Minfa Zongze ( ) [General
Provisions of the Civil Law] (promulgated by the National People’s Congress Mar. 15, 2017,
effective Oct. 1, 2017) 2017 S
TANDING
C
OMM
. N
AT
’
L
P
EOPLE
’
S
C
ONG
. G
AZ
. 191 (China),
http://www.npc.gov.cn/npc/xinwen/2017-03/15/content_2018907.htm.
12. Ashwin Kaja, China Moves Towards a Unified Civil Code, G
LOBAL
P
OL
’
Y
W
ATCH
(May 2,
2017), https://www.globalpolicywatch.com/2017/05/china-moves-towards-a-unified-civil-code/
; Laney Zhang, China: First Step Towards Adoption of a New Civil Code, L
AW
L
IBR
. C
ONGRESS
(Mar. 30, 2017), https://www.loc.gov/law/foreign-news/article/china-first-step-towards-
adoption-of-a-new-civil-code/.
13. Dirk Heirbaut, Factors Ensuring the Success or Failure of Draft Codifications: Some European
Experiences, in T
OWARDS A
C
HINESE
C
IVIL
C
ODE
: C
OMPARATIVE AND
H
ISTORICAL
P
ERSPECTIVES
61, 61 (Lei Chen & C.H. (Remco) van Rhee eds., 2012).
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
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