The Making of the Chinese Civil Code

Reflections on the environmental damage compensation regime in Chinese civil legislations

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.

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.

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

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.

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.

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.

Principles in Chinese Civil Code

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.

China is a major civil law jurisdiction. Since the end of the 1990s great efforts have been made in China to codify the entire civil law. With the major statutes governing contracts, property, torts and conflict of laws promulgated in 1999, 2007, 2009 and 2010 respectively, the most crucial steps have been taken towards the creation of a Chinese Civil code. This book attempts to shed light on both the theoretical and the practical aspects of Chinese civil law, while extensive footnotes and a detailed bibliography and index allow for further study of specific areas and facilitate systematic research. The book addresses the following topics: Part I General, Part II Contracts, Part III Tort Law, Part IV Property Law, Part V Conflict of Laws. Combination of an overall picture of the specific field of law at issue and thorough analysis of fundamental issues. Combination of black letter law and law

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.

On January the 1st, 2021, the first Civil Code in the history of the People's Republic of China took effect. The process of codification of civil legislation began in the PRC back in the 1950s. However, due to various circumstances, the Code wasn't adopted during the 20th century. Only in virtue of the initiative of Xi Jinping, the General Secretary of the CPC Central Committee, the work on the content of a largecodified act of civil law was successfully completed and the Chinese parliament approved the Code in May 2020. A kind of "economic constitution", which is understood as the Civil Code, is designed to regulate a wide range of civil law relations, comprehensively protect the legal rights and interests of a wide range of participants. The emergence of the Civil Code in the legal system of China was a major event in the history of the country, it was carried out as a part of a large-scale campaign to strengthen the rule of law and rule the state on the basis of the law. The content of the Civil Code of the PRC is of significant theoretical and practical interest both for the Russian legal and sinological sciences, and for all compatriots working with China and in China. The research of the Code requires a deep immersion in the Chinese political and legal reality, an understanding of the foundations of public administration in a new era, and also an awareness of the specifics of legal culture, the legal consciousness of Chinese citizens and law enforcement practice.

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