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Wednesday, May 27, 2020, 06:32
Civil code a milestone in legal system
By Qiao Xinsheng
Wednesday, May 27, 2020, 06:32 By Qiao Xinsheng


China's first draft civil code, which is being reviewed by the top legislature, is essential to comprehensively advance the rule of law and better protect citizens' fundamental interests in the country.

As an important part of the modernization of China's governance system and governance capacity, the review of the civil code will focus on civil and administrative behaviors and the relationship between civil and social behaviors. To protect the basic rights of citizens and in accordance with the principle of autonomy of will, or the capacity to decide to do things on the basis of one's deliberations, the legislators should systemically codify the existing civil laws. And on that basis, they should adjust some specific legal norms to address the problems in judicial practice, in order to enact a civil code with Chinese characteristics.

Some experts lament that the existing civil laws would become history once the civil code is enacted. But enacting the civil code is not about reinventing the wheel or simply compiling a large number civil laws and civil norms of the past. It does not demolish the existing civil laws and regulations or the existing civil trial system. Instead, codification is a systemic process of providing a more convenient tool for lawyers, procuratorates and judges to deal with civil cases, as well as a clear guide for civil activities.

China's civil code draws on the legislative experience of the developed countries to address the problems associated with civil life in simple language. The draft civil code is focused and practical, as it proposes specific solutions to burning issues. From the transfer of rural homestead or the cooling period for marriage registration, or apportioning of legal liability for littering in high-rises or tackling legal property management disputes, all find place in China's civil code. People do not need the guidance of professionals to use the civil code to seek solutions to their problems.

The draft civil code also makes clear the provisions on individuals' privacy and personal information. It learns from the European Parliament's experience in legislation of common data while remaining connected to China's administrative law, in order to protect citizens' basic personality rights. And although the listing of personality rights separately may have caused controversy in the academic world, a large number of scholars have said the move will attract wider attention from all walks of life and better protect citizens' personality rights.

In particular, as a critical step in structuring China's legal system, the civil code lays an important legal and institutional foundation for the modernization of the country's governance system and governance capacity. The civil law (legal system) is liable to dynamic change, so are the social moral and ethical values embodied in it. It is thus impossible to formulate a civil code that can, at one go, solve all the civil problems in society.

Some scholars say the promulgation of the civil code will provide a universal tool for judicial organs to settle civil disputes, but the complexity of civil relations and the emergence of new problems due to social changes require judicial organs, which deal with civil cases, to deeply understand the basic spirit of the civil code, combine Chinese traditions and culture with the moral and ethical standards of modern society, and fully comprehend the specific legal norms of the civil code.

The civil code is a summary of China's experiences of reform and opening-up, so its enactment will signal the positioning of relations of production in the reform and opening-up process. As reform and opening-up is being widened, many unexpected problems could emerge while adjusting civil relations in the future. And to properly deal with such civil cases, judges will need to fully respect the legal norms embedded in the civil code, and creatively apply the code in the light of social reality.

China's civil code divides legal persons into for-profit legal persons, non-profit legal persons and special legal persons, changing the traditional classification and providing enough legal space for legislation on market subjects.

With the implementation of the Foreign Investment Law on Jan 1, for instance, foreign investors can participate in market competition on an equal basis with Chinese investors no matter whether they set up enterprises or buy the shares of listed companies in China's capital market. This forms an important legal basis for China to become the world's largest consumer market, and an important legal means to meet people's demand for a better life.

In the future, the rights and legitimate interests of all market entities doing business in China will be equally protected, and no entity will be allowed to hurt the interests of investors, or interfere in their legitimate business activities. Although the civil code is the codification of civil rights, from the perspective of civil rights protection, it limits public power and lays a solid legal foundation for building a fair environment for market competition.

The author is a professor of law at Zhongnan University of Economics and Law. 

The views don't necessarily reflect those of China Daily.

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