Principles in Chinese Civil 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.

The purpose of this article is to familiarize readers with the Chinese Civil Code, which entered into force in early 2021, and to draw their attention to the changes brought about by the Marriage and Family Book, which is now included in Volume V of the new code. The paternity system best reflects the changes in the Chinese Marriage and Family Book, especially Article 1073. A complete paternity system includes presumption, claim, and denial of the parent-child relationship. However, Article 1073 of the Civil Code, which regulates the parent-child relationship, is a guiding provision with a lack of operational rules. It is necessary to make general rules for operation and enforcement by adding supporting rules, including the presumption of legitimate children, the claim of children born out of wedlock, the denial of legitimate children, and other operational rules, to resolve paternity disputes. The Civil Code also makes changes to the adoption system in the Marriage and Family Book, mainly by further restricting the conditions for adopters with the aim of protecting the interests of the adoptee children. Although the Chinese Civil Code retains the concepts of legitimate and illegitimate children, in essence, there is no difference in their rights and legal status, including the right to inheritance. In conclusion, the legislative norms of paternity determination improve the Chinese paternity system, but lack operability, and it is important to accumulate experience through practice and draw on custom and jurisprudence to develop specific operational rules that complement the legislative provisions. This is exactly what this paper will address and the knowledge gap it will fill.

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.

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

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.

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.

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.

This review article aims to assess the achievements and challenges of Chinese conflicts of system in the past three decades. It reviews contemporary literature on Chinese conflict of laws. It argues that, although numerous journal articles and some valuable monographs and collections have been published, Professors Zheng Sophia Tang, Yongping Xiao, and Zhengxin Huo’s Conflict of Laws in the People’s Republic of China fills a gap in the literature because it provides a comprehensive and updated review of the Chinese conflicts system, achieves a balance of national pride and constructive criticism, and conducts a precise and concise comparative study between Chinese and international/foreign laws. This review article also comments on how 2017 Chinese Civil Law General Provisions would impact on Chinese conflict of laws. It concludes that China has partially modernized its conflicts system. The compilation of the Chinese Civil Code may ultimately improve this system.

The Chinese law of unjust enrichment is comprised of one general principle and four specific provisions, which is oversimplified. Article 122 of the Chinese Civil Code reads as follows: ‘Where a person acquires unjust benefits without a legal basis, the person who so suffers a loss shall have the right to require him to return the unjust benefits’. The goal(s) underlying this general rule remains unclear until today. Neither commentators nor courts show a coherent line of arguments. In fact, when describing why restitution should be granted in unjust enrichment cases, it is easy to lapse into circularity: an enrichment without a legal basis should be given up because it is unjust to retain something without a legal basis. This statement is a tautology implying that the law of unjust enrichment adds no substantive rules allocating entitlement.

On October 1, 2007 – the 48th anniversary of the founding of the People’s Republic of China (PRC) – the Property Rights Law of the PRC (hereinafter “PRL” or “Property Rights Law”) entered into force. The symbolic date clearly expresses the importance of this law, which was fourteen years in the making and of much interest both within China and internationally. The central thrust of the law is the protection of private property through the “socialist market economy” of the People’s Republic of China, which has been widely commented upon and is the law’s major political essence. Due to the law’s orientation towards German Law – in its basic structure and many individual provisions – this article uses Continental and especially German law to explain its major features and peculiarities. Registration requirements for real property rights and real rights for security will in the future be unified – the registration system, at least in the cities, leans on a German system, but does not copy it. The Regulations on residential property developed elements of different legal systems as the basis of a future Chinese solution. A reform of land use rights includes gestures towards the creation of private property in land (at least from an economic viewpoint) – altogether a major step forward not only towards the enactment of a comprehensive Chinese Civil Code but also on the long road of shaping a Chinese rule of law.

The right of recourse, or the right of contribution, between third-party security providers for the same debt absent any relevant agreement, is widely recognized in most common law and civil law jurisdictions. So was it in China. However, since the promulgation of the Chinese Civil Code 2020, the right of recourse seems to have been abandoned. Given the great divide between such abandonment and the practices in most other jurisdictions, this article explores the justification for the right of recourse, primarily from both the perspective of fairness and that of efficiency. Fairness concerns, particularly in the sense of distributive justice, are frequently referred to when justifying the right of recourse. But there are some drawbacks in a typical fairness analysis. Not only is the so-called ‘fairness’ often confused with other concerns, but also is such analysis inherently too vague to produce rules. Nevertheless, an efficiency analysis could justify the right of recourse and help develop the most efficient share calculation rule. The justification discussed in this article will benefit the relevant discussions in the property law of almost every jurisdiction and might also contribute to the debate on the relationship between fairness and efficiency.

"Globalization," "globality," "harmonization," and "integration" are concepts characteristic of the early 20th century that, in the legal sphere, have gained increasing relevance, especially in relation to Contract Law. But what do these notions mean in this context? And what effects are these phenomena generating?Internationalization, harmonization, and integration are reflected in legislation, particularly in the fact that the harmonization of private law has become a significant trend within the international community. In this regard, the international harmonization of contract law represents one of the most dynamic and productive fields of private law today.From the perspective of contract law development, instruments such as the UNIDROIT Principles of International Commercial Contracts and the United Nations Convention on Contracts for the International Sale of Goods are increasingly being adopted. These frameworks are used by parties in international transactions as governing law and are applied by arbitration institutions as general rules in global trade contexts.In this sense, both the Contract Law of China and the Contracts Section of the Chinese Civil Code are rooted in a solid practical experience derived from Chinese commercial transactions. At the same time, they incorporate legislative advances from foreign laws and adopt a broad international perspective. These legal instruments reflect distinctively Chinese characteristics while incorporating contemporary elements, positioning themselves as an example of civil law adapted to the era of globalization.

Due to the sharp increase of private wealth since the 1980s, estate administration has become of considerable importance in the People’s Republic of China. As the existing rudimentary rules were insufficient to give adequate protection to the interests of the parties involved, a comprehensive reform was carried out as part of the Chinese Civil Code of 2020. A key institution of the new regime is the estate administrator, who mandatorily intervenes in every succession case and who has a duty to protect the safety and integrity of the estate and to safeguard the legitimate rights and interests of the heirs, legatees, and creditors. Another core element of the reform is the concept of overlapping liabilities. However, even after the reform, there are a number of issues that are not explicitly solved, regulated, or addressed.

Integration of Public and Private Law in the New Era—The Green Principle of the Chinese Civil Code