The modernization of Chinese Civil Law over four decades

• Author: The modernization of Chinese Civil Law over four decades
• Pages: 39-72

FRONTIERS OF LAW IN CHINA

VOL. 14 MARCH 2019 NO. 1

DOI 10.3868/s050-008-019-0003-4

FOCUS

CHINESE LEGAL SCIENCE IN THE 40 YEARS OF REFORM AND OPENING UP

THE MODERNIZATION OF CHINESE CIVIL LAW OVE R FOUR DECADES

WAN G Li mi ng∗

Abstract This article reviews the historical development of Chinese civil law since

reform and opening up of China and argues that the primary achievement of civil law

legislation over the last four decades has been the formation of a comprehensive civil

legal system. Today’s civil law system in China not only satisfies the institutional

requirements for building a market economy but also constructs a legal rights system

and establishes fundamental civil law principles, such as individual autonomy, equal

protection, good faith, and fairness. In the 40 years since reform and opening up, there

have been significant innovations with regard to the specific systems, systemic

structures, and fundamental principles of Chinese civil law. This article summarizes the

experiences of China’s civil law legislation since reform and opening up and looks ahead

to how the anticipated “civil law codification” suitable for the modern era will develop a

modern legal code based on China’s domestic circumstances.

Keywords reform and opening up, 40 years, Chinese civil law, civil law codification

INTRODUCTION ...................................................................................................................... 40

I. A BRIEF HISTORY OF THE DEVELOPMENT OF CIVIL LAW SI NCE REFORM AND

OPENING UP.............................................................................................................. 41

II. THE MAIN ACHIEVEMENTS OF CHINESE CIVIL LEGISLATION SINCE REFORM AND

OPENING UP............................................................................................................. 46

A. Formation of a Comprehensive System of Civil Laws......................................... 46

B. Construction of a Legal System that Facilitates China’s Socialist Market

Economy ............................................................................................................. 48

∗ (󱁠󰋣) Ph.D. in Civil and Commercial Law, School of Law, Renmin University of China, Beijing,

China; Professor, School of Law, Renmin University of China, Beijing, China; Chairman of the Civil Law

Society of China and Executive Vice President, Renmin University of China, Beijing 100872, China. Contact:

wang_ liming@263.net

Parts of this article were published under the title 󳕓󰏰: 󰣦󰦪󱞠󰦪 (Four Decades of

Chinese Civil Law: Review and Prospects) in 6 󰦪 (Legal Science), (2018), a Chinese legal journal. Parts

of this article were presented by the author at the Lecture Series of the Standing Committee of the 13th

National People’s Congress (Lecture 6). See http://www.npc.gov.cn/npc/xinwen/2018-09/05/content_

2060667.htm (last visited Sep. 13, 2018).

40 FRONTIERS OF LAW IN CHINA [Vol. 14: 39

C. Construction of a System of Individuals’ Legal Rights...................................... 51

D. Recognition of Basic Civil Law Concepts Including Individual Autonomy and

Good Faith......................................................................................................... 53

E. Preservation of the Value and Social Function of Families............................... 54

III. CHINESE CHARACTERISTICS OF CIVIL LEGISLATION SINCE REFORM AND

OPENING UP........................................................................................................... 54

A. Innovation of the Legal Framework.................................................................. 55

B. Innovation of the Legal System .........................................................................56

C. Innovation of Legal Concepts........................................................................... 59

D. Innovation of Legal Values ............................................................................... 60

IV. THE MAIN EXPERIENCES OF CHINA’S MODERN CIVIL LEGISLATION AFTER

REFORM AND OPENING UP..................................................................................... 61

A. Legislative Objectives: Maintaining the Basic Economic System and Fully

Protecting Individuals’ Legal Rights ..................................................................61

B. Legislative Techniques: Civil Legislation with an Emphasis

on Scientific and Democractic Deliberations..................................................... 62

C. Legislative Concepts: Upholding Adherence to Domestic Circumstances and

Contemporaneity ................................................................................................ 63

1. Civil Legislation Upholds Adherence to Domestic Circumstances ............... 63

2. Civil Legislation Upholds Contemporaneity................................................. 65

D. The Source of Law: The Reconciliation of Domestic Legal Traditions and

Comparative Legal Cultures.............................................................................. 67

V. THE FUTURE OF CIVIL LAW IN CHINA: A CIV IL CODE FOR THE NEW ERA ............... 68

CONCLUSION.......................................................................................................................... 72

INTRODUCTION

Since the start of reform and opening up in 1978, China has launched market-oriented

economic reforms and has made substantial achievements in just four decades. Economic

reforms and legal reforms come hand in hand, the latter serving as an institutional basis

for the advancement of the former. Successful economic reform is generally preceded by

a successful legal reform.1 China has experienced 40 years of rapid economic growth and

inclusive social progress since reform and opening up while achieving rapid development

in civil law. In merely 40 years, China has transformed from a planned economy

dependent on governmental administrative orders into a market economy that operates

according to civil laws and public regulations. Over the last four decades, China’s rapid

civil law development has mainly been characterized by two experiences. First, China has

referred to or even transplanted the civil legal systems of countries/regions with

developed market economies, including those of continental Europe, the US, and Japan.

1 Mancur Olson, Big Bills Left on the Sidewalk: Why Some Nations Are Rich, and Others Poor, 10(2)

Journal of Economic Perspectives, 3–24 (1996).

2019] THE MODERNIZATION OF CHINESE CIVIL LAW OVER FOUR DECADES 41

Second, China is continuously exploring, by trial and error, and reflecting on the

development of its legal system to understand and develop Chinese civil law through

experimentation.

The modernization of Chinese civil law over the last four decades is not only about

the development of a market economic system but the incubation and evolution of the

concept of individuals’ legal rights. During this process, China has constructed a system

of civil laws to govern its market economy and protect its people’s legal rights. As civil

subjects, citizens are not only granted increasing freedoms to conduct economic

exchanges, but also entitled to comprehensively maintain their personality and dignity.

Since reform and opening up, China has become the world’s second-largest economy

after 40 years of development. Major improvements have been accomplished in the

material and cultural lives of its huge population. And China’s civil legislation has played

a crucial role in facilitating such improvements. The past 40 years of China’s civil law

development represents the history of transformation in politics, economics, and social

life throughout China.

On the occasion of 40 years since reform and opening up, China is steadily advancing

its “civil law codification” project. This moment serves as an important opportunity to

reflect on China’s civil law development experience and prepare institutional

arrangements for future social and economic development. This article aims to review the

development of civil law over the past four decades and to explore future prospects,

including civil law codification. It also aims to provide an opportunity for international

legal scholars to gain an in-depth understanding of the development and achievement of

Chinese civil law since reform and opening up and its future development trends. The

author believes that the further development of Chinese civil law will enrich the cultures

of civil laws in around the world and promote comparative studies of civil laws.

I. A BRIEF HISTORY OF THE DEVELOPMENT OF CIVIL LAW SINCE REFORM AND

OPENING UP

Ten years after the Cultural Revolution ended, a climate of reform and opening up

swept through China. In December 1978, during the Third Plenary Session of the 11th

Central Committee of the Communist Party of China (CPC or “the Party”), a strategic

decision to shift the party’s and nation’s focus from class struggle to socialist

modernization was made and the goal of advancing socialist democracy and perfecting

the socialist legal system was set. With the promotion of policies aimed at reform and

opening up, China gradually established a socialist market economy. This provided an

unprecedented opportunity for the development of China’s civil law. The 40 years of civil

law development since reform and opening up can generally be divided into the following

four stages.