Article by Hao Jiang
The Civil Code of the People's Republic of China (the Code) was enacted on May 28, 2020, and became effective on January 1, 2021, as the first civil code in Communist China. Haif a century of codification efforts 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 1,260 articles, the Code is divided into seven books: General Provisions, Property Rights, Contracts, Personality Rights, Marriage and Family, Inheritance, and Tort Liabilities. In a break with civilian traditions, the Code divides obligations into contracts and torts, and it absorbs the law of unjust enrichment into the book on contracts as quasi-contracts. Moreover, a book on the law of personality stands on its own and includes an enumerated list of personality rights protected by Chinese law. These articles on personality rights focus on privacy and data protection in an effort to keep the Chinese civil law up-to-date so that it can tackle the legal challenges posed by the advancement of technology.
Much progress has been made with the adoption of the Code, but there are problems that need to be addressed for this civil code to ultimately be successful. Some of these problems 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, and the clash between distributive justice--the foundation of Chinese moral philosophy—and commutative justice—the foundation of Western private law. I argue that solutions to some persistent problems require structural change in the 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.
About the Authors
Hao Jiang. Assistant Professor of Comparative Private Law, Bocconi University Department of Legal Studies.
Citation
95 Tul. L. Rev. 777 (2021)