5. The New Draft of Chinese Civil Code
1. Underlying Reasons for Drafting the New Civil Code
(1) The provisions of GPCL are too simple for application.
(2) There have already been several specific laws outside GPCL, some provisions of which are contradictive. For instance, the Civil Juristic Acts in GPCL vs. the Validity of contracts in CL.
(3) Some articles in GPCL are not compatible with the current situations. For example, the new draft wants to decrease to the age, from 10 to 7, to be a person with limited capacity. In addition, the general statute of limitation will be extended to three years.
(4) More than 20-year experience of market economy calls on a systematic and integrated civil law.
2. The Tentative Structure of the new Draft Civil Code
According to the resolution of People’s Congress, the new draft will finally contain 9 books covering every aspects of civil law system. The 9 books are in turn:
Book I: General Principles
Book II: Property Law
Book III: Contract Law
Book IV: Law of Personal Rights
Book V: Law of Marriage
Book VI: Law of Adoption
Book VII: Law of Inheritance
Book VIII: Tort Law
Book IX: Conflict Law
Since China has already published Contract law, Law of Marriage, Law of Adoption and Law of Inheritance in the past years, the new draft of civil code will not revise the four legislations too much. Nevertheless, the gravity of the draft is the other five books. The final draft would include more 1,200 articles.
People’s Congress also thought that it is difficult, if not impossible, to enact a complete civil code in one time and therefore the draft law of civil code will be discussed and approved by NPC one book after another.
The debates on the draft of civil code are cantered on its structure. Two hottest issues are: one is whether law of personal rights can be an independent book or not; the other is whether the draft should be include law of Intellectual Property Rights.
The current draft work of NPC is focused on the draft of Property Law. The draft of property law began from 1998. It has been submitted and discussed by the NPC for four times, but none got a chance of approval. According to the latest news, the draft will not be submitted for discussion in the upcoming NPC annual session. However, it does not mean the draft will be set aside and it will however be subject to further revision. And the revised draft will be scrutinized in the end of 2006 to determine whether it is appropriate to be submitted for discussion in the next NPC annual session.
II. Main source of Chinese civil law
It is difficult to confine the scope of civil law in China. To a narrow sense, it only contains the law of persons, property law, contract law and tort law. Family law and inheritance law are not parts of civil law. But now, it is a common recognition that family and inheritance law are part of civil and will be included in the new draft the civil law. With regard to IP law, there are still more disputes. Even now, no one is sure whether it will be contained in the new draft of civil law or not. In this lecture, I will give the three laws a brief introduction in the following.
1. General Principles of the Civil Law (GPCL)
民法通则
Adopted in 1986
2. Contract Law (CL)
合同法
Adopted in 1999
3. Law of Marriage, Law of Adoption and Law of Inheritance
婚姻法，
收养法，
继承法
Law of marriage was adopted in 2001.
Law of adoption was adopted in 1991.
Law of inheritance was adopted in 1985.
4. Intellectual Property Law (Copyright Law, Patent Law and Trade-mark Law)知识产权法 （
著作权法，
专利法，
商标法）
Copyright law and trade-mark was adopted in 2001 and patent law was adopted in 2000 in order to join WTO.
5. Judicial Interpretation of Chinese Supreme Court 司法解释
When looking at Chinese legal system, note should be take of interpretation of Supreme Court. Although China has no case law framework, Supreme Court is conferred the power to issue interpretation, which has the same effect of statutory law. Almost every law has its own interpretation by the Supreme Court. As a lawyer you should always keep in mind of this interpretation. However, in most cases the judicial interpretations goes too far, sometimes even depart from the scope of the statutory law. It sounds kind of unconstitutional; nevertheless the legislative situation in China pushes the Court to do so because the statutory laws are either too general or too outdated to be implemented.
