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A Brief Introduction of Chinese Civil Law

A Brief Introduction of Chinese Civil Law


Hou Liyang


【关键词】Chinese Civil Law
【全文】
  
 
 
 Road Map
 
 1. The development of civil law in China
 2. The main source of Chinese civil law
 3. General Principle of Civil Law
 4. Law of Marriage, Law of adoption and Law of inheritance
 5. IP law
 6. Contract law
 
 I. The Development of Civil Law in China
 1. before 1910: one draft law
 Many historians think of the year 1910 as the separation year of ancient China from modem China. This argument is true, at least to Chinese law. Before 1910 there was no civil law, neither law of such kind as western civil law system. In ancient China, there was only one law, criminal law, which governed all kinds of relations between people, including criminal, civil, administrative and so on.
 Note is taken that the draft law of civil code by Qing dynasty. This draft was done with the help of Japanese legal scholars based on German civil law. It almost copied all the provisions of German civil law except law of marriage and law of inheritance. It contains five books, general principles, law of obligations, property law, family law and inheritance law, with 1569 articles in total.
 2. from 1911 to 1949: two civil laws
 (1) From 1911 to 1930
 In this period, the legitimate government was Beiyang Government (北洋政府). With the support by Sun Yet-sen (孙逸仙,孙中山,or 孙文), the draft law of civil code by Qing dynasty was adopted almost without reservation by Beiyang government.
 (2) From 1930 to 1949
 In 1928 Kuomindang (国民党) became the legitimate government in China and at the same time began to draft a new civil code. The drafting work ended in 1930 and the civil law was adopted at the same year. This civil law almost was drafted according to the former civil, taking consideration of some ideas in Swiss civil code. The structure of the former civil law was maintained. This civil law is still effective in Taiwan.
 3. from 1949 to 1986: three abortive drafts
 We can call this period as no-civil-law era. Throughout this period, there was no civil law except marriage of law, the content of which will be mentioned in Chinese marriage law part. Nevertheless, China experienced three drafts of civil law, though no one was really adopted by the reason of political movements.
 The first draft was made in 1954. This draft was made based on the 1922 civil law of Soviet Union. According to the idea of Soviet Union, the relation of marriage can not be entailed in the civil law regime and this idea also influenced the structure of the current civil law. Therefore, this draft constitutes four parts, general principles, property law, law of obligations and inheritance law, with 525 articles in total.
 The second draft came out and failed again in 1962. This draft was characterized by an idea that it must be different both from Soviet civil law and from capitalism civil law. It had three parts, general principle, ownership law and transaction of property, with 262 articles. Within this draft, on the one hand a lot of legal terms were abandoned; on the other hand, inheritance law was eliminating out of civil law regime, following marriage law. That is the reason why there is no the two part in the current civil law.
 The last draft was provided in 1982. Since market economy has not yet fully established, the adoption of this draft was suspended until 1986. This draft is in fact the current civil law almost with the same provisions.
 4. from 1986 till now
 As we can see from the above mentioned, 1986 civil law is the 1982 draft law of civil law. This law was adopted in 1986, almost twenty years ago. Although this law is named as general principle of the civil law, it plays a role of civil code for the past two decades. Not like the structure of German or French civil code, Family Law and Inheritance Law are separated from General Principles of the Civil law based on the reason I mentioned before.
 Nevertheless, there are only 156 articles in GPCL, which means its provisions are far from applicable. In fact, as we can see from its name, GPCL only provides very general principles concerning its every part. Two underlying reasons can be taken account:
 (1) From political perspective, in 1986 China was facing its transitional period. Although open-door policy and market economy had been established for several years, the legislator was still not sure where Chinese socialism reform should go. Since market economy is the base of civil law, a perfect civil code cannot come out without the resolution of market economy;
 (2) There was also a practical problem, which is lack of legal experts. Since 1949 until 1978, there was no law in China except for Constitution Law and Law of Marriage. Legal education and legal profession was destroyed from almost 30 years. It is impossible to draft a specific civil code without the help of legal experts.
 Therefore, at that time GPCL was adopted as a transitional law. Nevertheless, unfortunately no one would imagine that twenty years later it is still in effect, though some articles are useless any more.


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