VII. Eine Entwicklungsgeschichte des chinesischen Familien- und Erbrechts im Lichte der Rezeption des deutschen BGB

Abstract

Summary In contrast with China’s several millennia of civilization history, its history of civil law legislation had not started until the late Qing-Dynasty (1911). This discrepancy stood out prominently in the correlated areas of the family law and inheritance law due to China’s cultural features and the compatible cultural awareness of its people, which had naturalized and legitimized their practices in both areas. Actually, in no other areas had the cultural consciousness, the deep-rooted cultural psychology and the consciousness-driven behavioral patterns of the Chinese families and individuals been more profoundly shaped by the rules of rites and etiquette, the ethical rules and the patriarchal clan system, central customary-legal elements enshrined in the Chinese history. As its key achievement, the legal modernization in the late Qing period (1902–1911) brought forth the Civil Code of the Qing- Dynasty (ZGE), the first such milestone in China’s legal history, initiating the civil law legislation in China. With regard to China’s special legal-historical and legal-cultural background, the drafters of the ZGE – especially its family and inheritance law – had to revolutionarily modernize the Chinese civil law, while at the same time, transferring certain traditional cultural legacies. This could not have been possible without adopting the German Civil Code (BGB) as the primary foreign codification model, especially from the legal-technical, legal-systematic and legal-dogmatic perspective. Ever since then, the evolution of the Chinese civil law has been closely connected with the adoption of the BGB, while the history of the former runs parallel to the history of the latter. The influences of the BGB on China’s major civil law codifications, including also the Civil Code of the Republic of China (1929–1931) and the PRC Civil Code (2020), have been significant and continuous. It is legal-historically insightful to probe into these influences while examining the evolutionary history of the Chinese family and inheritance law ever codified since the ZGE, and, accordingly, retracing and closely analyzing the pre-modern state of both areas.