Civil Law In China Research Articles

Privacy Protection of Public Figures in China—The Case of Yundi Li’s Prostitution

Since the birth of the right to privacy, more and more attention has been paid to the protection of the right to privacy. In China, since the introduction of privacy rights from the West, the protection of privacy rights has been focused on civil law, while the protection of privacy rights in legislation and judicial practice in other branches of law has only been superficial but not in-depth. The effect of civil law on the protection of privacy rights is undeniable, especially after the introduction of the Civil Code, which provides more thorough and complete regulations on privacy rights in the field of civil law. However, with the development of society, relying on civil law alone to protect the right to privacy has become a challenge. The protection of the right to privacy of public figures is even more lacking. For example, the case of Li Yundi’s prostitution, which was publicly reported by the Beijing Chaoyang Public Security Bureau on 21 October 2021, reveals the loopholes in the protection of privacy and the privacy of public figures in China. Firstly, civil law in China has been effective in protecting the right to privacy, but in this case, the right of public security to disclose Li Yundi’s private life involves the infringement of citizens’ privacy by public power. Secondly, in China, public figures are often involved in the public interest, and it is the consensus of the academia and society as a whole that anyone in conflict with the public interest should give way to the public interest. However, in judicial practice, the author believes that it is unfair to treat public figures and ordinary citizens differently in terms of privacy rights when the public interest is not seriously endangered. Therefore, this article aims to analyse the current status and shortcomings of the legislation and judicial practice on the protection of the privacy of public figures in China on the basis of the right to privacy and the privacy of public figures, and to draw on the advanced experience of other countries in order to establish and improve the privacy protection mechanism of public figures in China.

The Vernacularization and Localization of Civil Law in China

The Vernacularization and Localization of Civil Law in China

The Process of Civil Law Codification in China

The paper analyzes the process of modern codification of civil law in China, provides a historical overview of the codification of civil law in China, raises the problems of private law codification and analyzes the political, economic and other sources of these problems. It is noted that only criminal (public) law was present in traditional China. Legal traditions based on the rule of criminal law continued for more than 2,000 years until the early years of the twentieth century. China has not embarked on the path of modernizing the legal system and codifying civil law. In 1929-1930, the first Civil code in the history of China was adopted. It was built on the Swiss and German civil codifications model, simultaneously reflecting the experience of the Japanese, French and Soviet codifications of civil law. After the PRC was formed, the stage of extensive borrowing of Soviet socialist law, including civil law, began. However, attempts to codify the law failed, the reasons for which lie in legal nihilism and a lack of necessary attention from the authorities. The transition from an administrative planned economy to a free market one prompted the legislator to temporarily abandon the idea of codifying civil legislation. Instead of one codified law, it was decided to adopt several special ones. In the 21st century, a new stage of codification of civil law in China has begun. In 2002, the fourth draft of the civil code of the PRC was published, which for no apparent reason has sunk into oblivion. In 2014, the process of codification of civil legislation has become more active, and in 2017, part one of the future civil code of the people’s Republic of China was adopted. In accordance with the civil law codification plan in March 2020 the Civil Code of the People’s Republic of China should be adopted as a whole.

Formation of Civil Law in China in 1912–1929

In the article, the authors based on unpublished earlier in Russian language materials,study the process of civil law formation as an independent branch of law in China, payingspecial attention to the beginning of the 20th century, when the Chinese legal systementered the modernization period. That period is characterized by the existence of aphenomenon of the absence of regulatory and legal material that regulates property andpersonal non-property social relations that form the basis of civil law, with the activities of the Supreme Court of the Republic of China. The court’s presidents, having receiveda brilliant legal education, by relying on general principles of law, applying establishedlegal customs, interpreting the old Qing legislation and doctrinal interpretation of draftlaws, managed to create a unique law enforcement practice. In the framework of the legalsystem that takes most of the legal positions and constructions from the Roman-Germanlegal family, the judicial precedent, without being formally declared as a source of law,actually took the predominant position in the hierarchy of sources for a decade and a halfbefore it was adopted in 1929-1931, the first and only civil code of China. This situationbecame possible due to the fact that the leadership of the Qing Empire, long trying tokeep the country in international isolation, as a result, was forced not only to open citiesand ports for foreigners but also to actually take full advantage of the European right,mostly German, French and Belgian, etc. However, blind copying of legal norms did notgive the desired result, and the political struggle after the abolition of the monarchy andthe abrogation of the previous legislation created a legal vacuum that needed to be filledin by the judiciary and other law enforcement agencies. That allowed the Supreme Courtof China not only to ensure the uniformity of judicial practice but also to become a lawmakingbody, adapting the existing legal norms to the needs of contemporary reality.The Supreme Court summarized and systematized its own decisions for the first 7 yearsof activity, from 1912 to 1918, publishing them in the form of a collection of abstracts.In 1920 the collection was partially translated into English, and in 1924, into French. In1923 it was supplemented with new jurisprudence and translated into Russian, but notpublished. And, despite the fact that the legal system of the PRC does not consider itselfto any extent the successor of the legal system of the Republic of China, the study ofthe sources of law of the period 1912-1949 is a prerequisite for the fulfillment of themain function of any science - the growth of new knowledge, and in relation to legalscience - understanding of legal traditions and approaches to solving problems andregulating social relations, which are also characteristic of modern Chinese society.

On the Choice of Legislative Mode in the Codification of Civil Law in China —Based on the Perspective of Commercial Norms

On the Choice of Legislative Mode in the Codification of Civil Law in China —Based on the Perspective of Commercial Norms

Invalidity of Legal Act in View of General Provisions of Civil Law in China -Centering on Comprehension and Application of the Regulation on Public Order and Good Morals-

Invalidity of Legal Act in View of General Provisions of Civil Law in China -Centering on Comprehension and Application of the Regulation on Public Order and Good Morals-

Military Culture in Imperial China (review)

Reviewed by: Military Culture in Imperial China Peter Worthing Military Culture in Imperial China. Edited by Nicola Di Cosmo. Cambridge, Mass.: Harvard University Press, 2009. 456 pp. $45.00 (cloth). Like many edited volumes, this book has its origins in an academic conference. In 2001 a group of scholars specializing in Chinese military [End Page 500] history convened at the University of Canterbury in Christchurch, New Zealand, and offered their views on the topic "Military Culture in Chinese History." The conference produced papers dealing with many aspects of Chinese military culture, fourteen of which appear as chapters in this book. In his introduction, Nicola Di Cosmo provides a multifaceted definition of "military culture," which can include the system of conduct and behavior that regulated the actions of members of the military, the cultural forces that shaped strategic decision making of both civil and military elites, the values and traditions that determined a society's willingness to engage in war, and the presence of a literary or aesthetic tradition that deals with military events and personalities. In short, the essays, which range chronologically from the Zhou to the Qing, explore the manner in which the wu (military) has influenced the wen (civil) in Chinese history, and vice versa. The efforts of the editor and the contributors are successful for multiple reasons. First, several of the chapters shed important light on the issue of Chinese military history and culture, in particular by breaking down traditional barriers between the cultures of China's civil and military elites. Second, each author carefully links his or her research to the editor's introduction and the major themes of the work. This reflects an excellent job of editing and lends this collection of essays a coherence and continuity that is sometimes lacking in edited volumes. Third, while some regard the study of military history as an archaic tradition dominated by a "swords and saddles" approach, this volume reveals the broad research agendas of the contributors, whose studies of China's military tradition touch on literature, economics, politics, foreign relations, religion, and the law. A few examples will suffice to demonstrate the skillful and diverse manner in which the authors explore these definitions of military culture. In his chapter "Law and the Military in Early China," Robin D. S. Yates examines the close connection between the military and the development of civil law in China. Indeed, military officials typically meted out punishment to civilian transgressors as the military doubled as a police force. Dating back to the Warring States era, intellectuals and officials borrowed methods designed to promote military discipline and order among the increasingly large military units of the time and applied them to the growing populations of their states. The Legalists who built the powerful Qin state, which would unify China in 221 b.c., borrowed heavily from the military when devising methods to control the population at large. Well-known systems of collective responsibility and mutual protection, such as Lianzuo and Baojia, had their origins in military law. A period of important change on many fronts, [End Page 501] the Warring States era saw the expansion of military law into the realm of the administrative law of civil officials. Yates sees strong continuity throughout imperial China, with military law deeply embedded in civil law all the way through the Qing. David A. Graff's contribution, "Narrative Maneuvers: The Representation of Battle in Tang Historical Writing," takes a different approach by analyzing Tang dynasty texts in order to understand the attitudes of the men who wrote these histories. Sifting through battle descriptions from a variety of literary sources, Graff determines that the authors of these works, Confucian scholars with no military experience, showed scant interest in tactics, weapons, formations, or the experiences of the soldiers. Instead, they extolled the intelligence of the victorious commanders and attributed their success to cunning, craftiness, and ability to outsmart the enemy. According to Graff, the pervasive emphasis in Tang sources on the intellectual capabilities of the commander, rather than the technical details of combat, reflects in part the weight of literary tradition in China, but also the Confucian preference for the intellectual and abstract over the specialized skills of...

Substantive rules of argumentation for value judgment in civil law: In the context of academic practice of civil law in China

Value judgment is at the core of civil law. This paper explores how scholars of civil law reach mutual understanding and consensus on specific value judgment by rational discussion in the context of multiple value orientation. Based on a brief evaluation of the theory of legal argument and with the basic value consensus of Chinese civil law scholars as the premise, this paper proposes two substantive rules of argumentation for scholars of civil law to discuss value judgment: First, a strong of equal treatment should be carried out in the absence of sufficient and justified reasons or otherwise; Second, the freedom of civil subject should not be restrained in the absence of sufficient and justified reasons or otherwise. To reach mutual understanding, and on the basis of that to reach new consensus on specific value judgment further, scholars of civil law should base their discussions on substantive rules of argumentation for value judgment, follow rules and forms of argumentation as procedural techniques, and apply proper methods of argumentation. This paper also explores the application of substantive rules of argumentation on two specific value judgment issues of civil law scholars.

Basic Principles of Civil Law in China. Edited by William C. Jones. [Armonk, New York: M. E. Sharpe, 1989. 378 pp.

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