Parent-Child Relationship in the Civil Code of China

Starting from 28 May 2020, China, which has long been considered a civil law jurisdiction, finally has its own Civil Code. However, among 1260 articles of the Code, trust is mentioned only once. From a perspective of comparative law, the trust’s appearance in the civil code has always been informative for observing its transplantation process. Thus, by investigating the five rounds of civil law codification in China over decades, as well as the considerable controversy regarding trusts and codification, this article attempts to discuss the reasons, implications, and influences of the legislative result of trusts in the Code.

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.

Taking the systematic logic of China's civil code as a framework, this paper explores the dynamic adaptation of the basic principles of civil law in the context of the digital economy era and its function of reconstructing the market economic order. The study points out that traditional civil law principles (such as autonomy of meaning, protection of reliance, and public order and good morals) are facing the adaptive challenges of new business models such as the platform economy and data transactions, and there is an urgent need to realise a balance of values by integrating decentralised principles and constructing synergistic mechanisms. The article starts from the limitations of formal rationality in modern civil law, analyses the inevitability of modern civil law's shift towards substantiation, and emphasises the role of the expansion of the principle of good faith and the development of the typology of public order and good morals in regulating the risk of market failure. The Chinese Civil Code responds to the real needs of the digital economy, such as the protection of human dignity, the internalisation of environmental costs, and the distribution of platform responsibilities, through such innovations as the independent codification of personality rights, the introduction of the green principle, and the dynamic articulation of the special law on commercial affairs. In view of new challenges such as the dilemma of positioning data rights and interests and the regulation of algorithmic power, the study proposes to construct a two-tier rule of "consent-anonymisation" based on the principle of good faith, expand the scope of application of the principle of reliance in order to balance technological neutrality and transaction security, and realise a systematic distribution of platform responsibilities through the presumption of fault and differentiated attribution of responsibility. Distribution. This paper provides a theoretical framework and a practical path for the adjustment of the basic principles of civil law in the era of digital economy, which is of dual value for the improvement of the civil law theory system and the promotion of the rule of law in the market economy.

Reflections on the environmental damage compensation regime in Chinese civil legislations

The Article 33 of the Chinese Civil Code provides written voluntary guardianship agreements and the Article 11 of the newly issued Interpretation provides arbitrary rescission rights and statutory rescission rights concerning the agreements. Some aspects related to exercising the rescission rights including fiduciary relationship, time limit, legal effects and circumstances, are interpreted in detail in this paper firstly and then rescission rights by agreement stipulated in the Article 562 of the Chinese Civil Code are discussed in terms of connotation and civil subjects. There after, the two principles including the principle of best interests and the principle of protecting self-determination rights for exercising rescission rights are examined in theory and in practice. In the end, in terms of practical application of rescission rights, it is pointed out that some problems regarding possible abuse and time limit of rescission rights remain to be solved for the future interpretation of the Chinese Civil Code.

Implications of the Verdict of Constitutional Court Number 46/PUU-VIII/2010 on the Hereditary Right of Illegitimate Children Born of Mixed Couple in Islamic Law Perspective

Principles in Chinese Civil Code

There are several reasons why the legal institution of dien . (generally, but, as will be shown, erroneously rendered in English as “mortgage”) should be of interest to the student of Chinese and Vietnamese law. First of all, it merits attention on account of its very wide use, a fact which has been recognized by its incorporation, in a modified form, into the Chinese Civil Code. Then again it affords a striking example of an attempt by the Chinese government in Imperial times to develop by legislation the scope and purpose of an institution of private customary law, and of the way in which customary law asserted its vitality in face of the legislator by surviving unchanged into modern times. And lastly it illustrates, by the erroneous interpretations that for 150 years have been put upon it by European lawyers, the pitfalls that lie in the way of anyone who tries to explain Far Eastern legal concepts in European terms.

Women, Family Formation, and the Welfare State in Latin America Susie S. Porter (bio) Ann S. Blum . Domestic Economies: Family, Work, and Welfare in Mexico City, 1884-1943. Lincoln: University of Nebraska Press, 2009. xliii + 351 pp., ISBN 978-0-8032-1359-3 (pb). Donna J. Guy . Women Build the Welfare State: Performing Charity and Creating Rights in Argentina, 1880-1955. Durham and London: Duke University Press, 2009. 194 pp. ISBN 978-0-8223-4330-1 (pb) Nara B. Milanich . Children of Fate: Childhood, Class, and the State in Chile, 1850-1930. Durham and London: Duke University Press, 2009. xv. + 376 pp., ISBN 978-0-8223-4557-2 (cl), 978-0-8223-4574-9 (pb). Jadwiga E. Pieper Mooney . The Politics of Motherhood: Maternity and Women's Rights in Twentieth-Century Chile. Pittsburgh: Pittsburgh University Press, 2009. xiii + 201 pp ISBN 978-0-8229-7361-4 (cl); 978-0-8229-6043-0 (pb). Nichole Sanders . Gender and Welfare in Mexico: The Consolidation of a Post-revolutionary State. University Park: The Pennsylvania State University Press, 2011. 176 pp. ISBN 978-0-271-04887-1 (cl). In 1992, the historian Silvia Arrom pointed out that, for Latin America, the field of family history flourished prior to that of women's history.1 Since the time of Arrom's observation, Latin American women's history expanded considerably, often in close relationship with family history. The books under review demonstrate the benefits of considering the two fields in tandem. Each author focuses on different research interests: children, family formation, women's labor and organizational activities, maternal health, and women's rights. All speak to how gender relations within and across families informed interpersonal relations, family formation, labor, and political mobilization, while paying particular attention to cross-class relations and the perpetuation of socio-economic inequality. Moreover, these books contribute to important debates regarding the maternalization of women's rights, or the way "motherhood" has served as a central [End Page 212] identity by which women's rights have been formulated. Taken together, these scholars speak to the specificity of women's mobilization in different Latin American countries and show the way distinctive class relations in each country shaped family and women's history. Nara Milanich's Children of Fate examines childhood within the context of family formation in Chile between 1850 and 1930. Family history has been a robust field of inquiry since the 1970s, focusing primarily on the colonial period and on class-specific family formations. Milanich explores the early republican period and the ways family formation created and reinforced class hierarchies. Working with judicial and notarial records and the papers of a Santiago orphanage, she traces various forms of filiation and the responsibilities and obligations of that relationship. Several factors defined filiation, or how an individual was related to a child, such as civil law, vernacular fosterage (extra-legal adoption), and compadrío (fictive kinship relations), which tied people together by affection and/or obligation. Through civil law, the Chilean state played an important role in filiation by defining a child as either legitimate (hijo de familia) or illegitimate (hijo natural or hijo simplemente ilegítimo), and regulating the rights and responsibilities associated with each status. In Chile, as in most Latin American countries until the mid-nineteenth century, legal code stipulated that parents must provide food and moral tutelage for both legitimate and illegitimate children. Women could take fathers to court to gain financial support for sustenance (alimentos). The legal and cultural rights that this implied resulted in a modest safety net for illegitimate children and their mothers. Indeed, Milanich shows that the courts found in favor of women's demands for alimentos in over half of the cases she analyzed, while an additional 14 percent ended in settlements favorable to women and their children (46). By the 1850s, however, women and their illegitimate children lost rights. Liberal reform swept Latin America during the mid-nineteenth century, with contradictory results. Whereas politicians who touted liberalism declared the primacy of the rights of the individual, as they revised civil codes, women and children lost legal rights and authority within the family. For example, the reformed Chilean Civil Code (1857) altered the means...

The rapid advancement of digital technology has given rise to cryptocurrency as a new economic instrument that challenges the traditional concepts of property under Indonesian civil law. This study analyzes the legal status of cryptocurrency assets within the Indonesian civil law system and the urgency of transforming the concept of property to accommodate modern digital realities. The main issue discussed is the ambiguity surrounding the status of cryptocurrency assets as legal objects under the Civil Code (KUHPerdata), which still primarily focuses on tangible physical objects, thereby creating a legal void in protecting property rights and digital asset transactions. This research employs a normative legal method with an analytical approach to examine legislation, legal doctrines, and comparative studies of international regulations. The findings indicate that although cryptocurrencies have been recognized as commodities through regulations by Bappebti and OJK oversight under the P2SK Law, their legal status as civil objects remains ambiguous because the Civil Code has yet to accommodate intangible digital objects with economic value. The study identifies the transformation of the property concept through the deconstruction of the physical existence requirement as an urgent need to ensure legal certainty and adequate protection for cryptocurrency users. The research recommendations include expanding the definition of "property" in the Civil Code, explicitly regulating property rights over cryptocurrency assets, and developing adaptive digital dispute resolution mechanisms to establish a civil law system responsive to the development of modern financial technology.

The article is subdivided into two parts. While the first part reflects the so far development in the recodification of the Czech private law and its trends, the second part of the paper analyses in general terms certain parts of the Civil Code as arranged according to sections and presented for discussion. At the beginning, the authors state that after the year 1989 with respect to the initiated fundamental social changes, especially in the light of the transition to market economy, the situation in legislation was far from satisfactory. Therefore, after the first urgent legislative initiatives (fundamental amendment of the Civil Code, adoption of the Commercial Code) a pressing need for a systematic re-codification of private law arose. Each civil law codification represents an important landmark not only in the development of the civil law itself, but it is a landmark in the legal system as a whole. This applies both to jurisdictions where the new codification through the new enriching elements consummates the prior consolidated and stabilized development and to such jurisdictions - as is the case of this post-communist country – where the recodification represents an opportunity to heal the vacuum in civil law and the deformations and weak points of the civil law regulation before the year 1989 (see especially considerable disintegration of individual parts of civil law provided for in a number of codices, among which, however, no necessary links have been established). The article concludes that in spite of numerous de-codification phenomena, characteristic of modern society, the codification of private law is the basis of unified and integral system and does not represent a hangover of the old times. For all these reasons it was perfectly justified to proceed to the re-codification of civil law in this country. The codification, however, has to meet certain fundamental prerequisites in order to exercise its function in modern society. First, in its fundamental concept expressed most generally in the code the re-codification must reflect – through its philosophical idea determining the purpose of private law together with its universally recognized unifying civil law principles, either explicit or not, as well as through the regulation of the fundamental civil law concepts effected to a reasonably general degree and on a professional level – not only the current situation and needs but also the civil law relations to be expected in the third millennium. This fundamental approach expressed in the most generally conceived code must also allow for continuous and flexible responses to new phenomena arising from the current accelerating speed of social, economic, and technological changes. To meet these purposes, the conception has to be such so as to enable the creation and functioning of special legal norms, especially acts, which as complements to generally conceived code shall represent integral parts of a unified and integral system of civil law and the court decision which within the framework of continental written law play a role indispensable in the process of formation of the contents of civil law norms. The present paper argues that the submitted codification introduced by the most generally conceived code as universal basis, which in a subsidiary manner is applicable to all other branches of civil law, is capable of meeting the expectations of the modern society to have a unified, integral, complete, yet open, harmonized and transparent system of private law. It is the Civil Code that should assume the position of such generally conceived code (codex) also because it has always played such role and has had a traditional position in continental law. In the following passages, the article focuses on the mutual relationship between the Civil Code on one hand and the Commercial and Labour Codes on the other. In conformity with the intended subject-matter of the law as subsequently adopted, the article comes to a conclusion that it is theoretically justified and systematic to designate the special commercial regulation currently in preparation as a law. This special business regulation in a form of law shall in its coherence (it will involve the provisions regulating fundamental business law concepts, companies, co-operatives, etc.) is going to represent a secondary general basis to be applicable for other business law norms in a subsidiary manner. On the other hand, the article is critical of the fact, that the approved intended subject-matter of the Civil Code counts on the existence of Labour Code which fact is incoherent from the theoretical as well as systematic point of view. It is true that the subsidiary affect of the general part of the Civil Code (as a basic private law code) on employment relations is admitted (subsidiary principle), the leading principle, however, is that the Labour Code itself determines which provisions of the Civil Code may apply to employment relationship (the principal of delegation). In its second part, the article analyses – mostly in general terms – the submitted general part as subdivided into sections and the authors show some of the fundamental strong points of this part (the approach to private law in its completeness, natural link with the constitutional and international bases of private law, the emphasis placed on the non-mandatory character of the private law regulation), and they also draw the attention to some of the weak points (especially the system of delimitation of the regulation of general rights of persons in the Civil Code and in the special legislation, the proposed regulation of juridical persons, the proposed conception of things). The article also deals with the legal terminology, the formulations and the legal language as a whole which is used in the general part as subdivided into sections. In this respect, the paper recommends a rather reserved approach with respect to the principal of continuity. Terminology, terminological phrases and concepts once adopted both in practice and theory and used over a long period of time, and then changed, may bring about the risk of destabilization of legal practice and cause legal uncertainty. In the conclusion, the authors explain why the adoption of the new Civil Code as a universal basis of private law, should not be unreasonably hasty with regard to its key role in civil law, legal system and the life of society at large, no matter how urgent such re-codification appears to be in this country, its legal system and society. The commenced and continuing legislative work should not result in immature civil law re-codification which would in its system, contents and terminology represent anything else than modern, relatively stable, well designed and solid framework for private law relations rightly expected by the public.

The extraction of heat energy through ground source heat pumps (GPCs), powered by natural energy, is an environmentally friendly alternative to traditional energy sources and provides an effi cient source of sustainable heating, cooling and seasonal thermal energy storage and recovery. This study attempts to analyse the problems of legal qualifi cation of geothermal equipment. Bearing in mind the investment process and the subsequent use of geothermal energy sources, such as heat and cooling storage, energy foundations or reservoirs (near-surface and subsurface), it becomes extremely important to answer the question of the legal nature of the indicated devices. In particular, to clarify whether they fall within the concept of real estate expressed in Article 46 § 1 of the Act of 23 April 1964. – Civil Code, or whether they are construction objects within the meaning of Article 3(1) of the Act of 7 July 1994 – Construction Law. It should be emphasised that whether a given device will be qualifi ed as real estate, a construction object, or whether it will not have such a legal status, will determine both the decision as to the implementation of the investment (the issue of permits, investment costs, the time needed for the implementation of the investment) and the subsequent use of the device (the issue of tax charges on both the device itself and the energy generated with it).

In this short paper, I would like to explain why the rules on set-off in the reformed French Civil Code (published 11 February 2016), are in many respects a missed opportunity to modernise the French law on that topic, even if some interesting innovations have taken place. The role and definition of set-off Whereas the old Code civil did classify set-off as a mode of extinction of obligations by its position in Chapter V (of Title III) entitled “ De l'extinction des obligations ”, the new provisions start with an article containing a definition of set-off as the simultaneous extinction of reciprocal obligations between two parties (new Article 1347 CC). First of all, it is unfortunate to add another definition instead of directly formulating the rule as the old Article 1289 CC did. Codes should contain as few definitions as possible; the task of codes is not to define things that are by their nature only instances of rules and not a description of facts; their task is to contain good, operative rules. Definitions only make sense in order to avoid having to repeat certain things over and over again in rules. Secondly, the definition is, as nearly all definitions in French codes, incomplete. It does not include the different elements and it does not spell-out the different roles of setoff. Modern doctrine stresses that set-off is not merely a mode of payment, i.e. extinction of obligations, but also a mode of getting paid, i.e. of enforcement of a right to payment and in anticipation thereof a security for the creditor. The security function of set-off is completely missing. If we turn e.g. to the EU Insolvency Regulation, that role is precisely stressed, esp. in consideration (70): “ If a set-off of claims is not permitted under the law of the State of the opening of proceedings, a creditor should nevertheless be entitled to the setoff if it is possible under the law applicable to the claim of the insolvent debtor. In this way, set-off would acquire a kind of guarantee function based on legal provisions on which the creditor concerned can rely at the time when the claim arises ”.

This research aims to find out: (1) the basic considerations of Constitutional Court Judges in deciding on children's inheritance rights for children outside of marriage. (2) the difference between the legal inheritance rights of children in marriage and the inheritance rights of illegitimate children in marriage. (3) the relevance of the Constitutional Court decision Number 46/PUU-VIII/2010 concerning the Status of Children Outside of Marriage which is used as a reference by Judges to decide cases regarding the inheritance rights of children outside of marriage. (4) legal reconstruction that can be accommodated by judges into marriage law regarding the Constitutional Court decision Number 46/PUU-VIII/2010 concerning the Status of Children Outside of Marriage. The type of research used by researchers is normative legal research, namely through a statutory and regulatory approach and a conceptual approach. The sources of legal material used are the 1945 Constitution, the Civil Code, Customary Law, and Constitutional Court Decisions. The research results show that (1) The legal force of the Constitutional Court's decision is binding and every child has the right to all forms of protection. (2) There are differences in the inheritance rights of legitimate children and illegitimate children in marriage. (3) The relevance of the decision of the Constitutional Court Number 46/PUU-VIII/2010 concerning the Status of Children Out of Wedlock reflects the principle of equality before the law, which confirms that everyone has the right to recognition, guarantees and protection. , and fair legal certainty and equal treatment before the law. (4) In the Constitutional Court Decision Number 46/PUU-VIII/2010 concerning the Status of Children outside of marriage, Judges can use science and technology to determine the status of the father of a child outside of marriage.

Incentives, iterative communication, and organizational control