The Chinese Civil Code in the Global Legal Order Inner and Outer Perspectives
Series: Comparative Law in Global Perspective, Volume: 7
Editors: Mauro Bussani, Ivan Cardillo, Marta Infantino, and Jun Xue
This volume offers a unique, comprehensive view of the contents, context and potential of the Civil Code that in 2021 entered into force in the People’s Republic of China. The twenty-three essays herein collected, authored by distinguished Chinese and non-Chinese scholars, describe inner and outer perceptions about the Chinese Civil Code and analyze its likely impact within and outside the country. In so doing, they shed light not only on the comparative origins of current Chinese rules, but also on the potential influence that these rules may have in comparative terms in the future.
Preface
The book analyses the internal and external impact of the Chinese Civil Code (ccc) that entered into force in China in January 2021. The ccc, which cov- ers the main pillars of Chinese private law – from personhood to personality rights, from property to succession and secured transactions law, from con- tract to tort law –, represents the final point of arrival of almost forty years of reforms of Chinese law. During this period, Chinese law developed as an orig- inal hybrid of norms inspired by selected foreign Western legal traditions and autoctonous rules consonant with historically-rooted approaches to law and legal institutions. The ccc is the civil codification with the largest personal scope of application in human history. Yet, the sphere of influence of the ccc will likely be wider, given the long-standing, historical influence of China in the East Asian region, and the growing economic, technological and cultural power of China beyond that region (as well as the many Chinese business com- munities operating abroad).
Against this background, the volume offers, we believe, a valuable contribu- tion to the English-speaking literature on Chinese law, by assessing the gist of the provisions in the ccc and their broader impact within and outside China, and by investigating not only the comparative origins of current Chinese rules, but also the influence these rules may have on comparative law scholarship.
The volume is the outcome of a truly joint collaboration of distinguished Chinese and non-Chinese scholars, and it is divided in three parts. The three chapters in the first part (‘The Overall Framework of the Chinese Civil Code’) place the ccc within the broader historical and comparative perspectives of private law codifications. The fourteen chapters in the second part (‘The Inner Contents of the Chinese Civil Code’) survey the main contents and novelties of the seven books that compose the ccc. Each book is analyzed by a Chinese and a non-Chinese scholar, in order to provide readers with a reliable picture of inner and outer perceptions about the core features of the ccc. The six chapters in the third part (‘The Outer Significance of the Chinese Civil Code’), which are authored by scholars who are not based in mainland China, explore the potential impact of the ccc in Macao and Hong Kong (where the ccc does not apply), India, Russia, Europe, Africa and North America.
We leave the conclusions on this vast survey to the readers. But I cannot leave this page without thanking all the other editors and contributors for the time and energy they spent in bringing this book to fruition.
Mauro Bussani
Chapter 2 The Chinese Way to the Civil Code
Ivan Cardillo
1. Introduction
In the words of Xi Jinping, “[t]he Civil Code systematically integrates the civil legal norms formed by the long-term practice of the People’s Republic of China over the past 70 years, has absorbed the excellent legal culture of the Chinese nation of more than 5,000 years, and borrowed from the beneficial achievements of humanity in the construction of a civilization of rule of law”. There are three sources of inspiration for the Civil Code: Socialism and its Chinese practice, Chinese legal tradition, and the West with the transplant of its legal institutions. The Code symbolizes the completion of a specific idea of legal order. Not by chance, the final act that resulted in the adoption of the Code was, precisely, the ‘Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Advancing the Rule of Law’. The Code is considered to be a milestone in the process of modernization of the Chinese legal order, a “modernization in Chinese style” (“中国式现代化”), and a Chinese contribution to legal modernity, based on the integration of the three original elements mentioned above. The Code has been welcomed as an ‘Encyclopedia of Social Life’ (“社会生活的百科全书”), because it offers a new ‘method’ for the people, legal experts and the government to accomplish the task of “developing socialism with Chinese characteristics”.
The Code marked the beginning of the its era in the history of Chinese law. For the first time, a law is called ‘code’. Such achievement is the final result of collective efforts over almost two centuries in order to “gather the wisdom of the multitude, and turn it into the great code”. ‘Multitude’ refers to several generations of not only Chinese scholars, but also of Western scholars whose ideas have been translated into China. We can consider the newly adopted Code as the final product of a long period of legal reforms attempts. This process started in the second half of the XIX century, which was a time of great codifications in Europe and an epic transformation in the history of China; as well as a period of experiments, whose final result is epitomized by the Chinese Civil Code. The Chinese Code is the XXI century’s version of a code as the source of law, with the Bürgerliches Gesetzbuch leading the XX century and the Code Civil leading the XIX century.
Contents of the Book
Notes on Contributors
Preface
Part 1
The Overall Framework of the Chinese Civil Code
1 The Chinese Civil Code in Comparative Perspective Mauro Bussani and Marta Infantino
2 The Chinese Way to the Civil Code Ivan Cardillo
3 Highlighting the Significance of the Chinese Civil Code 王利明 Wang Liming
Part 2
The Inner Contents of the Chinese Civil Code
4 The General Part of the Civil Code of the prc: Formulation, Structure and Features 薛军 Xue Jun
5 Comparative Perspectives on the General Part of the Chinese Civil Code Pascal Pichonnaz
6 Reshaping Chinese Real Right Law through the New Chinese Civil Code 朱晓喆 Zhu Xiaozhe
7 The New Chinese Civil Code: Outer Perspectives. A View from Comparative Property Law Sjef van Erp
8 An Introduction to the Book on Contracts of the Civil Code of the PRC 韩世远 Han Shiyuan
9 Comparative Perspectives on the Book on Contracts Umberto Celli Jr and Ligia Espolaor Veronese
10 Ambitious Goals for the Book on Personality Rights of the Chinese Civil Code 张家勇 Zhang Jiayong
11 Comparative Perspectives on the Book on Personality Rights Ken Oliphant
12 Formation of the Book of Marriage and Family of Chinese Civil Code, from a Historical Perspective: A Mixture of More Endogenous Resources and Less Elements Transplanted from Other Civil Law Countries徐涤宇 Xu Diyu
13 Marriage and Family in the Civil Code of the prc: Outer Perspectives Nicoletta Patti and Antonello Miranda
14 The Innovations of Succession Part in the Civil Code of the People’s Republic of China 汪洋 Wang Yang and 尹思雨 Yin Siyu
15 Comparative Perspectives on the Law of Succession in China Grzegorz J. Blicharz
16 The Structure and Contents of the Book on Tort Liability of the Chinese Civil Code 方新军 Fang Xinjun
17 A Swiss Perspective on the Book on Tort Liability of the Chinese Civil Code Franz Werro
Part 3
The Outer Significance of the Chinese Civil Code
18 The Significance of the Chinese Civil Code in the Special Administrative Regions of Macao and Hong Kong 唐曉晴 Io Cheng Tong
19 Legal Musings about Environmental Jurisprudence in the Civil Code of China and India: Peeking through a Tortious Liability Lens Manjeri Subin Sunder Raj and Ujal Kumar Mookherjee
20 The 2020 Chinese Civil Code: Some Comparative Legal Challenges from a Russian Law Perspective William E. Butler
21 The Significance of the Chinese Civil Code in Europe Marie Goré
22 The Significance of the Chinese Civil Code in Africa Salvatore Mancuso
23 ‘Obvious Unfairness’ and ‘Unconscionability’: An (Indirect) American Connection to Chinese Contract Law James Gordley and 蒋昊 Hao Jiang
Expanded Table of Contents
Index
Notes on Contributors
Grzegorz J. Blicharz Assistant Professor, Department of Roman Law, Jagiellonian University in Kraków, Kraków, Poland.
Mauro Bussani Full Professor of Comparative Law, Law Department, Trieste University, Trieste, Italy; Adjunct Professor, Law School, University of Macau, Macau, sar of the People’s Republic of China.
William E. Butler John Edward Fowler Distinguished Professor of Law, Penn State Dickinson Law, Carlisle, USA; Emeritus Professor of Comparative Law, University College London, London, United Kingdom; Foreign Member, Russian Academy of Natural Sciences, Moscow, Russia; Member, Ukrainian National Academy of Sciences and Ukrainian National Academy of Legal Sciences, Kiev, Ukraine.
Ivan Cardillo Adjunct Professor holder of the chair of Chinese Law at Trento University, Italy; Adjunct Professor at China University of Political Science and Law, People’s Republic of China; Senior Advisor ‘Faren’ Think Tank of the Chinese Government Ministry of Justice; Director of the Institute of Chinese Law.
Umberto Celli Full Professor of International Law, University of São Paulo, Ribeirão Preto Law School, São Paulo, Brazil.
Sjef van Erp Emeritus Professor, Maastricht University, Maastricht, the Netherlands; Visiting Professor at Trento University, Trento, Italy, and at the University of Oldenburg, Oldernburg, Germany.
Ligia Espolaor Veronese PhD from the University of São Paulo, lawyer in the arbitration field, São Paulo, Brazil.
方新军 Xinjun Fang Dean and Professor of Civil and Commercial Law, School of Law, Soochow University, Suzhou, People’s Republic of China.
James Russell Gordley W.R. Irby Chair in Law, Tulane University Law School, New Orleans, USA.
Marie Goré Professor, Faculté de Droit, University of Paris Panthéon-Assas, Paris, France; Director of the Institute of Comparative Law, Paris, France.
韩世远 Shiyuan Han Professor, School of Law, Tsinghua University, Beijing, People’s Republic of China.
Marta Infantino Associate Professor of Comparative Law, Department of Political Science, Trieste University, Trieste, Italy.
蒋昊 Hao Jiang Assistant Professor of Comparative Law, Bocconi University, Milan, Italy.
Salvatore Mancuso Full Professor of Comparative Law, University of Palermo, Palermo, Italy; Honorary Professor of African law, Centre for African Laws and Society, Xiangtan University, Xiangtan, People’s Republic of China; Visiting Professor, Somali National University, Mogaishu, Somalia.
Antonello Miranda Full Professor of Comparative Law, University of Palermo, Palermo, Italy.
Ujal Kumar Mookherjee Assistant Professor, Symbiosis Law School, Pune, a constituent of Symbiosis International (Deemed University), Pune, India.
Ken Oliphant Professor of Tort Law, University of Bristol Law School, Bristol, United Kingdom.
Nicoletta Patti PhD Candidate in System Dynamics (Social Science Stream), University of Palermo, Palermo, Italy.
Pascal Pichonnaz Full Professor, Faculty of Law, University of Fribourg, Fribourg, Switzerland; President of the European Law Institute (administrative seat Vienna, Austria).
Manjeri Subin Sunder Raj Knowledge Network Expert, Harmony with Nature, United Nations, New York, USA; Assistant Professor, Christ (Deemed to be University), Bangalore, India.
唐曉晴 Io Cheng Tong Dean and Professor of Law, Faculty of Law, University of Macau, Macau, sar of the People’s Republic of China
王利明 Liming Wang Distinguished Professor, School of Law, Renmin University of China, Beijing, People’s Republic of China; Chairman of the Civil Law Society of China, Beijing, People’s Republic of China.
汪洋 Yang Wang Tenured Associate Professor, School of Law, Tsinghua University, Beijing, People’s Republic of China.
Franz Werro Full Professor, Faculty of Law, University of Fribourg, Fribourg, Switzerland; Professor of Law, Georgetown University Law Center, Washington DC, USA.
徐涤宇 Diyu Xu Dean and Professor, Law School, Zhongnan University of Economics and Law, Wuhan, People’s Republic of China.
薛军 Jun Xue Full Professor, Peking University Law School, Beijing, People’s Republic of China.
尹思雨 Siyu Yin PhD student, School of Law, Tsinghua University, Beijing, People’s Republic of China.
张家勇 Jiayong Zhang Professor, School of Law, Zhongnan University of Economics and Law, Wuhan, People’s Republic of China.
朱晓喆 Xiaozhe Zhu Professor, School of Law, Shanghai University of Finance and Economics, Shanghai, People’s Republic of China.
