Is China on the Path to the Rule of Law?

By Rebecca Liao

Foreign Affairs

Earlier this month, at the conclusion of the annual meeting of its National People’s Congress (NPC), China moved one step closer to instituting a unified civil code. The body formally approved the General Principles of the Civil Law, which are guidelines on how laws governing all aspects of civilian life, from marriage to real estate ownership to personal injury, should be drafted, with the ultimate aim of completing the code by 2020.

Outside observers might be surprised that China has been able to operate at this level of economic activity without a formal civil code. Although China started developing a sophisticated commercial legal infrastructure in the 1980s, however, its other legal systems are still being put in place. With a growing influx of cases related to everything from family law to intellectual property to trusts and estates, the Supreme People’s Court has made clear that it is high time to build out and restructure the court system.

Establishing a civil code is an inherently political act. Some officials and legal scholars fear that by setting forth the rights protected by law, Beijing would open the doors to a “color revolution.” For example, Liang Huixing of the Chinese Academy of Social Sciences has gone so far as to equate formal rights of property and speech with “unchecked freedom,” which he fears could lead to an uprising similar to that in Ukraine in 2014.

Indeed, it is in fact small wonder that China does not have a civil code despite multiple prior attempts to establish one. On several occasions when it attempted to do so, including in 1954, 1962, 1979, and 2001, process toward a civil code ground to a halt. During the Cultural Revolution, all official discussions about a civil code ended because of the chaotic political environment. In 1979, economic reform and the opening up of China provided unique impetus for a legal code, but there was too much disagreement among drafters about process and underlying approach. In 1986, the current General Principles of the Civil Law was enacted, and it still governs civil matters to this day. From a different era, the 1986 principles reflect a far different social sensibility from that of the general principles passed this month. Efforts to enact a civil code in 2001 encountered similar obstacles to those in 1979, with the Standing Committee of the NPC once again deciding that a stepwise approach was better than a comprehensive overhaul of the code.

This is not to say that the country has had nothing more than vague general principles and guiding case decisions acting as civil law. In the current system, there are laws governing separate aspects of what would make up a civil code, including a property law, the tort liability law, and the inheritance law. Given the overlap in subject matter, adjudication, and the like, navigating the existing set of laws can be confusing and lead to inconsistent outcomes. And so, at the Fourth Plenum of the Central Committee in October 2014, the Communist Party decided to commit to the establishment of a civil code.

Continue to full article . . .

Picture: Voice of America [Public domain], via Wikimedia Commons

Advertisements

Leave a Comment

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s