Chinese Civil Law

The emergence of crypto assets, a novel category of assets, has posed significant challenges to property law across various legal systems. The integration of these intangible assets into property law frameworks proves to be complicated for many civil law jurisdictions, which tend to adhere to dogmatic approaches. In contrast, Anglo-American common law and Chinese civil law systems, despite their divergent origins, have exhibited legally pragmatic responses to intangible property, including crypto assets. By examining the development of their property laws concerning property conceptualization and the treatment of emerging intangible assets, this article explores how the historical foundations of Anglo-American common law in feudal tradition and Chinese civil law in communist ideologies have fostered adaptable and flexible notions of property. This adaptability is argued to be a strength within both the Anglo-American common law and Chinese civil law systems, enabling them to accommodate innovative intangible assets more easily compared to their civilian counterparts.

Chinese tort law was established within Chinese civil law when China adopted the European civil law model at the end of the Qing dynasty. This new Chinese tort law established a dual-liability basis which includes fault liability and liability without fault. Because liability without fault does not expressly point out the liability basis, the author explores the role of strict liability and vicarious liability from a comparative approach. With respect to fault and strict liability, the author further explores liability requirements such as fault, damage, causation and the justification of strict liability. Considering the developing international trends in tort law, Chinese tort law should recognize vicarious liability as an independent liability type. In contrast to the corresponding rules in the General Principles of Civil Law (GPCL), the Chinese Tort Liability Law (CTL) has made significant progress as regards drafting techniques. Keywords:Chinese Tort Liability Law (CTL); dual-liability basis; fault liability; General Principles of Civil Law (GPCL); strict liability; vicarious liability

The Chinese Civil Code (2020) is the first ever Civil Code in mainland China since 1949. In addition to the consolidation of existing civil legislations, the Code incorporated a number of doctrinal and structural changes that are significant both in and beyond China. The chapters in this volume demonstrate the extent of European influence in Chinese Civil Law and also shows how Chinese law innovates upon those influences. The book shares the insights from both the key Chinese scholars who were directly involved in the drafting process and veteran Western scholars who study Chinese private law.

According to Chinese civil law, the licensor’s permission to exploit a patent is clearly to be regarded as enabling the use of the patent. However, under certain circumstances, this seemingly correct understanding sounds somehow oversimplified, especially when it intersects with Chinese patent law. And this understanding may, in the absence of a clear explicit agreement, cause several problems (such as the subjective impossibility of performance) under the Chinese legal framework. Although the concept of a negative patent license is not in conformity with the legislative intent of the Chinese Civil Code, it could be a solution to these problems.

Legal translation plays a significant role for Chinese law to form self-expression under the global legal pluralism. The launch of the “Belt and Road Initiative” and other comparable strategies necessitates an efficient dissemination of Chinese legal discourse. Chinese law translation is more than just a linguistic exchange; it is an interchange with common law, civil law, or Islamic law; so, Chinese law should communicate new notions freely and considerately. This article finds that EU institutions have been attempting to create a new discourse of EU law, with legal translation playing an essential role. It employs both “familiarization” and “exteriorization” translation strategies to strengthen the formulation and regional recognition of EU law. Comparatively, the translation of Chinese law can benefit from this in order to express legal discourse with Chinese characteristics when combined with a context-oriented translation technique.

The imputation of liability for damages caused by kept animals found in China’s Tort Law is a unique, synthetic, and multidimensional dual system. On the one hand, hazard-based liability is the dominant factor, and on the other is fault-based liability the auxiliary factor. The Tort Law on kept animals is oriented towards the types of liability for damages caused by kept animals, rather than towards categories of animal types, and it categorizes liability degrees under both normal and special circumstances. While underlining the merits achieved by this liability imputation system in terms of its structure (on the macro-level), this Article also probes into the problems and difficulties arising out of some key junctures (on the micro-level), especially as the system is put into practice and its operational complexity is revealed. Because of the strong affinity of the Chinese civil law, and especially tort law, with its German counterpart, this Article references the German tort law on animal keeper’s liability for an historical and comparative legal analysis, bringing more light to the Chinese system of liability. The imputation of liability for damages caused by kept animals found in China’s Tort Law is a unique, synthetic, and multidimensional dual system. On the one hand, hazard-based liability is the dominant factor, and on the other is fault-based liability the auxiliary factor. The Tort Law on kept animals is oriented towards the types of liability for damages caused by kept animals, rather than towards categories of animal types, and it categorizes liability degrees under both normal and special circumstances. While underlining the merits achieved by this liability imputation system in terms of its structure (on the macro-level), this Article also probes into the problems and difficulties arising out of some key junctures (on the micro-level), especially as the system is put into practice and its operational complexity is revealed. Because of the strong affinity of the Chinese civil law, and especially tort law, with its German counterpart, this Article references the German tort law on animal keeper’s liability for an historical and comparative legal analysis, bringing more light to the Chinese system of liability.

The Civil Code has opened a new era of Chinese civil law, which stipulates the rights and obligations of civil subjects in all aspects of social life. Article 726 of the Civil Code sets up the legal right of the next of kin to purchase a house in preference to the lessee. This special provision has a profound cultural basis and value consideration, showing that civil law is moving toward a future that returns to a certain identity and membership.

Systematization and Scientific Problems of Chinese Civil Law Legislation

The Influences of Common Law on the Brazilian New Code of Civil Procedure

This chapter provides introductory remarks on past and present Chinese civil justice. The study of legal history generally emphasizes legal codes more than the actual workings of the law, and legal theories more than actual legal practice. The chapter illustrates with an analytical theme developed from the history-of-practice approach. It demonstrates in detail that a particularly important characteristic of Chinese law is that, with respect to the duality of experience and theory, it privileges experience, but not to the neglect of theory. The purpose of using moralism to conceptualize Qing law is to highlight its merging of moral representations with practical action. The history of the practice of divorce law reveals the same mode of thinking, and furthermore shows the nature of the very distinctive court mediation system that has continued to this day. Keywords: Chinese civil justice; Chinese law; court mediation system; divorce law; history-of-practice approach; Qing law

One of the civil law consequences of corruption currently prescribed under Chinese law is that a contract may be rendered void by virtue of its connection with corruption. By providing for five such circumstances, art 52 of China’s Contract Law reflects an absolutist approach that nullifies any contract that comes into contact with illegal conduct such as bribery. Unfortunately, invalidating a contract in most of those circumstances carries the cost of potentially harming a bona fide third party. On closer scrutiny, it may even do a disservice to the very purpose it is supposed to serve, such as the protection of state assets. It is thus submitted that, except where the contract itself is used as a vehicle to carry out the bribery, the contract is not void by reason of its connection with the bribery, at least where the parties have reached a genuine agreement.

Journal Article Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical and Operational Perspective Get access John W. Head, Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical and Operational Perspective ( Carolina Academic Press, 2011) John F. Murphy John F. Murphy *Professor of Law, Villanova University School of Law Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 60, Issue 3, 1 July 2012, Pages 862–872, https://doi.org/10.1093/ajcl/60.3.862 Published: 01 July 2012

Much ink has already been spilled on the Chinese tort law system, focusing in particular on its development, formulation, and transplants from other legal systems (particularly from German and French civil law). Very few, however, addressed the relation between the statutory reform and Chinese unofficial law. Resting upon the assumption that law is institutional and cannot be alienated from its cultural contexts, this chapter aims to describe the multi-layered framework of the Chinese tort law system in light of Bussani’s legal stratification doctrine.

Previous article FreeContributorsPDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreYuqing Feng (冯煜清) is associate professor of law at the School of Law, Southeast University, Nanjing, China. His current research centers on legal consciousness and judicial reforms in China.Ivan Franceschini is a Marie Skłodowska-Curie Fellow at the Australian National University’s Australian Center on China in the World and at Ca’ Foscari University of Venice. His research focuses on labor and civil society in China and Cambodia. He is coeditor of the open access journal Made in China: A Quarterly on Chinese Labour, Civil Society, and Rights.Xin He (贺欣) is visiting professor of law (2017–18) at Southwestern University of Finance and Economics, China, and professor of law at University of Hong Kong. His recent articles have appeared in American Journal of Sociology, Law & Society Review, China Quarterly, and American Journal of Comparative Law. His book Embedded Courts: Judicial Decision Making in China (with Kwai Ng) was published by Cambridge University Press (2017). His research interests include judicial reforms in China and Chinese family law.Shu Keng (耿曙) is University Research Fellow in the Department of Sociology and the Center for Local Government and Social Governance Studies, both at Zhejiang University. His research interests range from comparative political economy to organizational sociology, especially Chinese local governments, government-business relations, and cross-Strait trade relations.Xingmiu Liao (廖幸谬) is a PhD candidate in the Department of Political Science, Tsinghua University, Beijing. His main research is on Chinese politics and society, Chinese ethnic minorities, and the Chinese Communist Party’s United Front organization.Elisa Nesossi is an Australian Research Council Early Career Research Fellow at the Australian National University’s Australian Centre on China in the World. Her scholarship focuses on Chinese law, criminal justice, human rights, and civil society in contemporary China.Lynette H. Ong is an associate professor of political science at the University of Toronto. She is the author of Prosper or Perish: Credit and Fiscal Systems in Rural China (Cornell University Press, 2012) and of papers in Perspectives on Politics, Comparative Politics, The China Quarterly, Journal of Contemporary Asia, and Foreign Affairs, among others.Baoqing Pang (庞保庆) is assistant professor in the School of Sociology and Political Science and the Center for Social Governance and Public Policy, both at Shanghai University. His main research focuses on Chinese politics, especially the behavior of local governments.Edward Schwarck is a visiting research fellow at the Japan Institute of International Affairs in Tokyo. His research interests include political-military affairs in China.Munish Sharma is a consultant at the Institute for Defence Studies and Analyses, New Delhi, and a doctoral candidate at the Centre for East Asian Studies, Jawaharlal Nehru University, New Delhi. His research interests include cybersecurity, critical information infrastructure protection, space security, and defense technologies. He is the author of the monograph Securing Critical Information Infrastructure: Global Perspectives and Practices (2017) and coeditor of the book Securing Cyberspace: International and Asian Perspectives (2016).Wen-Hsuan Tsai (蔡文轩) is an associate research fellow at the Institute of Political Science, Academia Sinica, Taiwan. His main research is on Chinese political development, comparative politics, and comparative authoritarian regimes. He has recently published in China Journal, China Quarterly, Journal of Contemporary China, Modern China, Asian Survey, and Problems of Post-Communism.Lingna Zhong (钟灵娜) is assistant professor in the School of Politics and International Studies and a Fellow at the Centre for Reforms in Rural China at Central China Normal University, Hubei. Her main research interests are China’s cadre management system and studies of Chinese local government. Previous article DetailsFiguresReferencesCited by The China Journal Volume 80July 2018 Published on behalf of the Australian Centre on China in the World at the Australian National University Article DOIhttps://doi.org/10.1086/697399 Copyright 2018 by The Australian National University. All rights reserved.PDF download Crossref reports no articles citing this article.

In an era where the international investment and trade between Korea and China grow daily, the importance of international arbitration cannot be overstated. The Korean Arbitration Law was enacted with reference to the UNCITRAL Model Law. When the Chinese Arbitration Law was being enacted, the UNCITRAL Model Law was also referred to, but there are some discrepancies between the two. This article conducts comparative analysis based on the Korean and the Chinese Arbitration Laws, the Chinese Civil Procedure Law and the KCAB and the CIETAC arbitration rules. In order to adopt the UNCITRAL Model Law amended in 2006, Korea revised its Arbitration Law in 2016. The revised Law includes a more comprehensive legal regime regarding interim measures, emergency arbitrator, etc. In China, the enforcement of foreign-related arbitral awards and foreign arbitral awards is carried out mainly by intermediate people’s courts. In China, the report system to the higher people’s court for refusing the enforcement of foreign-related arbitral awards and for refusing the recognition or enforcement of foreign arbitral awards has the effect of safeguarding foreign-related arbitral awards and foreign arbitral awards in China. Both Korea and China joined the New York Convention, and domestic courts may refuse the recognition and enforcement of foreign arbitral awards according to the New York Convention.