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After decades of attempts, China enacts its first Civil Code
To formulate a Chinese civil code has been a long cherished wish of generations of civil law scholars over the past few decades
By Yuan Yuan & Ge Lijun  ·  2020-06-07  ·   Source: NO.24 JUNE 11, 2020
A new couple put their thumb prints on their marriage document at the Civil Affairs Bureau in Wuhan, Hubei Province in central China, on April 7 (XINHUA)
Jin Ping, a 98-year-old retired law professor of Southwest University of Political Science and Law in Chongqing in southwest China, is the last surviving expert to have participated in the first three attempts to draft a civil code in China.

The three bids, in 1954, 1962 and 1979, didn't succeed for various reasons, while the fourth undertaking, launched in 2001 with the participation of some of Jin's students, also failed in its mission.

The Civil Code, anticipated for decades, finally came to life and was adopted at the Third Session of the 13th National People's Congress (NPC), China's top legislature, on May 28. It will take effect on January 1, 2021. Jin said he was "overjoyed" at the news in an interview with Xinhua News Agency, adding that it was a "blessing" for him to see his lifelong goal come to fruition.

A long process

To formulate a Chinese civil code had been a long cherished wish of generations of civil law scholars over the past few decades.

Sun Xianzhong, a research fellow at the Law Institute of the Chinese Academy of Social Sciences and a deputy to both the 12th and 13th NPC, was an arduous promoter of such a code.

"The current civil law system is a patchwork of fragmented legislation," he told China Youth Daily. Since 1980, China has successively promulgated a series of separate laws including the Marriage Law, the Adoption Law, the Contracts Law and the Property Law, which for a long time have served as the basis for judicial practice in civil cases.

The General Principles of the Civil Law, enacted in 1986 as the foundation for the civil law system, could hardly meet the demand of a fast developing society, Sun explained. After in-depth fieldwork, he found that among its 156 articles, less than 20 could be applied to modern society. The other articles have either been replaced by separate laws or left behind.

Some articles in the General Principles even contradict other laws. For example, Article 136 states that the limitations of action concerning sales of substandard goods without proper notice shall be one year. However, Article 45 in the Product Quality Law states that the limitations of action for damage arising from a defective product is two years.

"There are gaps and inconsistencies that exist among the separate laws," Sun said. "To set up an overarching framework for civil rights to refine the country's basic legal system had become an urgent issue for the Chinese law-making community."

In 2013, the first year he served as an NPC deputy, Sun took the lead and submitted a proposal for compiling a Civil Code. In 2014, he submitted the same proposal. That same year, the Fourth Plenary Session of the 18th Communist Party of China (CPC) Central Committee called for progress in drafting a unified Civil Code.

Jin was excited at the news. "This is a turning point in China's civil law history," he said. "I am very confident that the Civil Code can be compiled successfully this time."

Shortly afterward, a two-step strategy was adopted. The NPC would first enact the General Provisions of the Civil Law, which would be followed by a review of each section of the Civil Code by the NPC Standing Committee. Finally, the General Provisions would be combined with the drafts of individual sections to form a draft Civil Code, which would be submitted to the NPC for final deliberation.In March 2015, the NPC Standing Committee set up a special work group for the drafting. In June 2016, it deliberated on the first draft of the General Provisions of the Civil Law, and on March 15, 2017, the General Provisions was passed at the annual NPC session, marking a milestone in the progress toward a full-fledged Civil Code.

In April 2017, compilation of six specific sections of the Civil Code was launched, while in late 2019, the complete draft made its debut after the General Provisions was combined with the six draft sections and opened to the public for opinions.

President Xi Jinping presided over three meetings of the Standing Committee of the Political Bureau of the CPC Central Committee in June 2016, August 2018 and December 2019, listening to the report of the NPC Standing Committee and giving important instructions.Zhang Yesui, spokesperson for this year's NPC session, said on May 21 that in the Civil Code's compiling process, the NPC collected 10 rounds of public opinions online and received over 1 million pieces of advise and suggestions from some 425,000 people. In addition, legislators went to many areas nationwide to investigate key issues.

Wang Liming, a law professor and Vice President of Renmin University of China (RUC), told Beijing Review that the legislators listened intently to the opinions of all parties and improved relevant rules in a timely manner. The Civil Code submitted to the NPC for deliberation had been changed based on various opinions.

In February, Chen Haiyi, an NPC deputy and chief judge at the Juvenile Criminal Tribunal of the Guangzhou Intermediate People's Court in Guangdong Province in south China, submitted a proposal to the NPC Standing Committee on improving regulations on guardianship because some children couldn't get proper care while their parents were quarantined during the novel coronavirus epidemic prevention and control.To her delight, Chen found that her suggestion was included in the draft Civil Code, which had specific provisions concerning new problems such as emergency situations like pandemic prevention and control. The articles say that if the guardian is temporarily unable to perform guardianship duties and the person under guardianship is left unattended, primary-level authorities or the civil affairs department where the guardian resides shall arrange necessary temporary care.

On May 28, one day before Jin's birthday, the draft Civil Code was adopted by the NPC. "It is a landmark achievement in China's law-making history," Jin said. "This is my best ever birthday gift."

Chinese lawmakers vote to adopt the long-expected Civil Code at the Third Session of the 13th National People's Congress in Beijing on May 28

Cradle to grave protection

As the first legislative package called a "code" since the founding of the People's Republic of China in 1949, the Civil Code, dubbed an "encyclopedia on social life" and "encyclopedia of rights," consists of 1,260 articles in seven volumes, including almost every aspect related to people's lives.

"The Civil Code protects people's rights to the fullest," Sun told Beijing Review. "It lays an important legal and institutional foundation for the modernization of the country's governance system and capacity."

"It comes at a time when Chinese society is experiencing a major transformation in its development," Li Shenglong, Vice President of Chongqing No.1 Intermediate People's Court, told China Today. "Some of the code's articles concerning environmental pollution and management and the aging population are noteworthy."

"One of the highlights in the Civil Code is the section dedicated to personality rights," Wang told Beijing Review. "This reflects the wisdom of China's judicial practice over the past few decades, and will undoubtedly increase the protection of ordinary Chinese people's rights."

The term "dignity of life" has been introduced in this section. Yang Lixin, a law professor at RUC, defined it as the dignity of birth, life and death. With this provision, a person can choose to refuse or accept hospice care or painful hospital treatment.

The term "peace of private life" grants people protection from illegal intrusion through activities such as peeping, eavesdropping and spam emails. Data collectors have a duty to protect an individual's personal information and cannot obtain, disclose or conduct transactions of this data without individual consent.

The code also responds to issues arising from the development of hi-tech and life sciences. For example, it lists human genes and embryos as fundamental rights that deserve protection and dictates that all medical and scientific research related to human genes and embryos must follow strict rules, laws and regulations. This provision is considered to be a response to gene-editing experiments on babies conducted by a professor in life sciences in Shenzhen, Guangdong in November 2018.

Natural persons' voice is also protected by the code as a right of personality. "With the development of artificial intelligence, natural persons' voice is more widely used on more occasions," Fang Yan, Vice Director of the Shaanxi Lawyers Association and an NPC deputy, said. "The Civil Code has adapted to the fast development of science and technology."

In the marriage law section, a cooling-off period of 30 days for couples ready to divorce has drawn wide attention. Couples who file for divorce by agreement must wait 30 days to reconsider their decision. If they change their mind, they can withdraw their divorce application within the 30 days, and after the waiting period, those who still want to divorce will receive their official documents. Cases of domestic violence or divorce lawsuits are exempted from the cooling-off period.

The article has evoked many discussions. Jiang Shengnan, a writer and NPC deputy, suggested it be deleted. "Among ready-to-divorce couples, only 5 percent made the decision impulsively," she said. "The 30-day cooling-off period only leaves those who have given divorce careful consideration to suffer longer in a failed marriage."

Sun Xianzhong, who participated in the whole drafting process, said the article was added with thoughtful attention. "The 5 percent is no small number since the divorce rate has been steadily increasing in recent years," he said.

The new code also leaves some issues unresolved for legal professionals to continue working on. Shi Jiayou, a law professor at RUC, raised an example concerning the protection of personal information. For parties that have the right to collect personal data, the code fails to regulate how long they can keep the information and under what circumstances they must delete the data.

"Some scholars say the Civil Code will provide a universal tool for judicial organs to settle civil disputes," Qiao Xinsheng, a professor of law at Zhongnan University of Economics and Law in Guangzhou, told China Daily. "But the complexity of civil relations and the emergence of new problems due to social changes require judicial organs to understand deeply 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."

Jin, the nonagenarian, said after the good beginning, the Civil Code still needs to be improved and updated so that it can serve the people better.

On May 28, right after the Civil Code was adopted at the NPC, a team was set up at Southwest University of Political Science and Law to popularize it in schools, communities and rural areas.

"It's no easy task to formulate a good law, and it's even more important to make sure it is understood by the public and enforced effectively," Jin said.

Timeline of the Legislative Process

May 28, the draft Civil Code is adopted by the NPC and will go into effect on January 1, 2021.

May 22, the draft is submitted to the annual session of the 13th NPC for deliberation.

December 28, 2019-January 26, the NPC seeks public opinions on the draft and receives 114,574 comments from 13,718 netizens.

December 28, 2019, the NPC Standing Committee submits the draft to the NPC for deliberation.

December 23, 2019, the complete draft Civil Code makes its debut after combining the General Provisions and the six draft sections.

August 2018, six draft civil code sections are submitted to the NPC Standing Committee for review.

October 1, 2017, the General Provisions of the Civil Law is implemented.

March 15, 2017, the General Provisions of the Civil Law is passed at the annual NPC session.

June 27, 2016, the NPC Standing Committee deliberates on the first draft of the General Principles of the Civil Law.

March 2015, a special work group is set up for drafting the document.

October 2014, the Fourth Plenary Session of the 18th CPC Central Committee puts forward the legislative task of compiling a Civil Code.

(Print Edition Title: Historic Code)

Copyedited by Rebeca Toledo

Comments to yuanyuan@bjreview.com

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