Article by Zhang Lihong
Traditional Chinese civil law remained in the form of customary law until the promulgation of the Civil Code of the Republic of China in 1929, which was modeled essentially upon the Bürgerliches Gesetzbuch (BGB) (German Civil Code) and the 1911 Swiss Law of Obligations. After the founding of the People's Republic of China (PRC) in 1949, this first civil code in Chinese history was abolished in mainland China, and its validity remained only in Taiwan.
Before its opening to the world in 1979, China twice attempted to draft a civil code, in 1954 and 1962. Due to the increase in the so-called “nihilism of law” school of thought and as a result of some political movements (the so-called “Against the Right” and “Three Jumps” movements from 1956 to 1960, as well as the Cultural Revolution from 1965 to 1975), China failed to codify its civil law. Shortly after Chinese political leader Deng Xiaoping's visit to the United States in 1978, China began its legislative reform, together with its well-known economic reform, by enacting some special civil and commercial laws. In 1982, after the success of the economic reform, China's legislature again planned to draft a civil code. In that period, Russian doctrine dominated the whole of Chinese civil law. The Soviet theory of economic law provoked heavy debate on the different functions of civil and economic law in China. Given such debate and the pragmatic policy of Chinese politicians, the Chinese legislature gave up on the codification of civil law and enacted only the General Principles of the Civil Law (GPCL) in 1986. Though it was not a civil code, the GPCL, with its nine parts featuring 156 articles, provided the most important civil law principles and institutions. The GPCL adopted many legal concepts and institutions of Roman Law and continental law, such as legal person, Rechtsgeschäft (juristic act), limitation of actions, civil liability, and so on. As in Italy, civil law and commercial law are unified legislatively in China. Thus, the GPCL is also applicable in the field of commercial law, except as otherwise stipulated by special commercial law.
In terms of positive law, besides customary law, the current civil (and commercial) law norms in China are composed essentially of three parts: the GPCL, special civil and commercial laws, and judicial interpretations.
About the Author
Zhang Lihong. Professor of Law at East China University of Political Science and Law (ECUPL, Shanghai, China) and Director of the Roman Law and European Law Center at ECUPL. Ph.D. in Civil Law and Roman Law from the University of Rome “La Sapienza” (Italy). E-mail:lihong111@gmail.com.
Citation
83 Tul. L. Rev. 999 (2009)