Civil code to strengthen rights' protection

China Daily


As he held up the draft of the general provisions for China's first civil code, Sun Xianzhong felt a huge sense of achievement.

The draft, which is currently being discussed by the nation's top legislative and political advisory bodies, and the civil code it will foster are long-held dreams for Sun, a deputy to the National People's Congress and a research fellow at the law institute of the Chinese Academy of Social Sciences.

If accepted, the draft will signal a move toward the establishment of the first civil code in the history of the People's Republic of China.

The code would unify laws related to non-criminal and non-administrative areas of the legal framework under a single piece of legislation.

"It is the fruits of our labor-we have spent so much time and energy preparing it," Sun said "This draft brings me closer to my dream."

A long-cherished dream

After graduating from the law school at the Northwest University of Political Science and Law in Xian, Shaanxi province, in the 1980s, Sun began researching civil law, a task that took him to Germany in the 1990s.

"I'm always willing to do things to improve our country's legal system," he said.

In 2013, he submitted a motion to the NPC urging the formulation of a civil code, but it received little attention.

Undaunted, he submitted the motion again in 2014. This time, he won the support of many deputies and the central leadership. Work to devise the code began the following October.

Sun is hopeful that the current two sessions will signal another step forward. "Our country has a number of laws to protect people's civil rights, such as those related to property and contracts, but there is no unified legislation to integrate them. Also, some older laws need to be revised," he said.

"There are two steps, and the first is the draft currently under discussion, which aims to clarify general civil rights, duties and principles. These general provisions are difficult to draft, because they will guide the parts that follow."

The second step will involve special provisions, such as enacting new laws and amending a number of existing pieces of legislation related to specific activities and industrial sectors.

Last year, the NPC's Standing Committee read the draft three times, but recognizing its importance and the need to garner a wider range of opinions, it was submitted to the two sessions on Wednesday as a major discussion point.

Some clauses, such as the protection of personal information and the extension of inheritance rights to unborn children, have already sparked heated public debate.

"We hope the civil code will cover all aspects of people's lives and protect their civil rights from the cradle to the grave," said Shi Hong, a leading official with the Standing Committee's legal affairs commission.

Shi confirmed that the special provisions will be drawn up or amended when the draft is approved: "Our goal is to finish the code by March 2020."

The introduction of the civil code, including the formulation of the draft, will be hugely significant for China, according to Shi.

"In practical terms, it will provide better protection of property and personal rights, while historically, it has been the dream of several generations of Chinese legal professionals," he said.

The code will also reflect the country's ability to enact legislation and enforce the rule of law, which means special attention will be paid to its formulation. "Preparing the draft and code is not an easy job for the legislators," he said.

Failed attempts

China has already made four unsuccessful attempts to draft a civil code.

In 1954 and 1962, the initiative was grounded for political reasons and because new legislation was not a high priority at the time. In 1979 and 2001, the underdeveloped economy, poor legal awareness and disagreements among lawmakers prevented any progress, Shi said.

Things changed after a surge in civil disputes in recent decades prompted the government to introduce a number of special laws ahead of the main legislation, aimed at protecting civil rights, such as those related to inheritance, marriage and property.

"We have prepared the draft to cover a wide section of society and solve disputes that have arisen as a result of the rise of the internet. We hope the draft will guide the sections that follow and result in a unified code," he said.

The code will not simply integrate existing legislation, though. "Instead, it will be a new, scientific and comprehensive measure, like an 'encyclopedia' in which people will be able to find answers if they encounter civil disputes," he added.

Public demand

NPC deputy Zhou Guangquan, who participated in the formulation of the draft, said the public is eager to see the code come into force: "Everyone will come into contact with it if they experience problems."

In China, urban residents often turn to the laws related to contracts or tort, which determines legal liability, to deal with disputes with schools, hospitals, potential employers, property and vehicle purchases. Some people even use the laws to settle arguments about the quality of service or food at restaurants.

However, in rural areas, people use civil laws if they encounter problems when attempting to sell agricultural produce or transfer land, said Zhou, who is also a professor of law at Tsinghua University in Beijing.

He said the code will be drawn up to comply with modern developments and "resolve new problems in society".

"During recent Mid-Autumn Festivals, I have noticed that there is too much packaging on moon cakes, but if the draft being discussed is approved, the problem will be eradicated because it places a high priority on resource conservation," he said.

As China and the world enter the age of big data, the protection of personal information has prompted discussion, he said, adding that protection has been written into the draft as a key feature.

"It shows the progress the legislation has made because it satisfies people's urgent demands. I believe that if it were adopted, a code based on the general provisions would further improve the rule of law," Zhou added.

Hou Xinyi, a member of the National Committee of the Chinese People's Political Consultative Conference, praised the draft when he discovered that it will extend inheritance rights to unborn children, if circumstances demand.

The issue has long been a bone of contention in China.

A recent case serves as a good example: A woman's husband died while she was pregnant. Later her father-in-law also died. Her husband's two brothers argued that her unborn child did not exist in a legal sense, lobbied for equal shares of their father's assets and tried to exclude their dead brother's family.

The woman appealed the case, but under the current law the court was unable to decide whether the unborn child could be classed as a legal entity.

As a result, the unborn child was denied the right to inherit any part of his grandfather's estate.

"The idea that a fetus can be awarded the right of inheritance is still controversial," said Hou, a professor of law at the Tianjing University of Finance and Economics.

If the draft and subsequent civil code are accepted, disputes of this kind will no longer arise.

More suggestions

Zhou and Hou are looking forward to seeing the draft approved and the civil code becoming law in 2020.

"If the draft is passed, or the general provisions are effective, we will be more confident about making or revising laws to enrich the code, such as the Marriage Law, the Tort Law, the Contract Law and the Property Law," Shi said.

Zhou said that if the draft is approved, changes should be made to ensure that it is flexible and in line with changes in society.

"Subsequent legislation or amendments to individual laws should be opened to the public to net a wider range of opinions and ensure it stays up to date," he said, adding that law enforcement will be crucial to the protection of civil rights.