The Making of a Civil Code in China: Promises and Perils of a New Civil Law

Abstract

The Chinese Civil Code was enacted on May 28, 2020 and will become effective on January 1, 2021 as the first civil code in the Communist China. Half a century of codification effort finally resulted in this much anticipated code. It utilized state-of-the-art codification techniques and presents a number of innovative features unique to China. In its concise 1260 articles, the Code is divided in seven books: the general provisions, property, contracts, personality, family law, succession and torts. In a break with civilian traditions, the Chinese Civil Code divides obligations into contracts and torts, and it absorbs law of unjust enrichment into the book on contracts as quasi-contracts. Moreover, a book on law of personality stands on its own which includes an enumerated list of personality rights protected by Chinese law with a focus on privacy and data protection in an effort to keep Chinese civil law up-to-date in order to tackle the legal challenges posed by the advancement of technology. Much progress has been made but there are problems that need to be addressed for this Civil Code to be successful. Some of these come from the tensions between the rise of private law and the dominant state sector, the contradictions among legal transplants, the incompatibility between doctrinal innovations and the existing structure, the clash between distributive justice - the foundation of Chinese moral philosophy and commutative justice - the foundation of Western private law. I will argue that solutions to some persistent problems require structural change in Chinese economy, doctrinal innovation and clarification, and conscientious acceptance of a law that is based upon philosophical ideas that differ from traditional Chinese moral philosophy.