[443th] Civil and Commercial Law Frontier Forum: Professor Zhang Xinbao: Adoption of the General Provisions of the Civil Law of the People's Republic of China
On March 17th, the 443th Civil and Commercial Law Frontier Forum on Adoption of the General Provisions of the Civil Law of the People,s Republic of China was held in Renmin Law School. People who were present included the Chief Editor of China Legal Science, Yangtze River Scholars Distinguished Professors of the Ministry of Education, members of ¡°the Four ¡®First Batch¡¯¡± Talent Programme, Members of Ten Thousand Talent Programme, members of China Law Society leading group for drafting Civil Code, staff of China Law Society for drafting the General Provisions of the Civil Law of the People,s Republic of China. Professor Wang Yi and Professor Shi Jiayou of Renmin Law School, Professor Xue Jun of Peking Law School were also present. Professor Yao Hui of Renmin Law School served as the host.
To begin with, Professor Zhang Xinbao of Renmin Law School, as the author of Interpretation of the General Provisions of the Civil Law of the People,s Republic of China, delivered a keynote speech on the adoption and content of the General Provisions of the Civil Law of the People,s Republic of China, in which he gave a detailed interpretation of the key provisions of each Chapter and pointed out the Chinese characteristics embodied in the adoption process.
With regard to Chapter I Basic Provisions, from the perspective of the forms, the name of this Chapter has been changed from the original ¡°Basic Principles¡± into current ¡°Basic Provisions¡± which better concludes other content included under this chapter besides basic principles. From the perspective of the contents, in addition to natural persons and legal persons, unincorporated organizations have been admitted as the third type of parties to civil legal relations; in order to fulfill the developmental requirements of the modern society, it has also made great modification to the basic principles of civil law, which also reflects that the legislators have better understanding of the nature of civil law.
With regard to Chapter 2 Natural Persons, Article 16 makes clear that where the protection of the interests of a fetus is involved in, among others, a succession or acceptance of a gift, the fetus shall be presumed to have capacity for civil rights. However, in case of a stillborn, the fetus¡¯s capacity for civil rights has never existed. A minor under the age of eight instead of ten is a person without capacity for civil conduct. This change, to some extent, goes in accordance with Chinese traditional doctrine of the Mean. Besides, the guardianship is regulated in more detail for the best interests of the wards. Relevant provisions on guardianship for adults should also be a big step.
With regard to Chapter 3 Legal Persons, when it comes to which criteria shall be adopted to classify legal persons, despite that many scholars advocated legal persons be classified into corporation aggregate and social legal entity as it has been done in German law, the General Provisions of the Civil Law of the People,s Republic of China adopts the classification between for-profit legal persons and non-profit legal persons, while put the national authorities under an independent category. Besides, village committee and resident committee are differentiated from state organs as special legal persons with certain powers to organize and manage their own affairs.
With regard to Chapter 4 Unincorporated Organizations, unincorporated organizations include but are not limited to two main types, namely sole proprietorships and partnerships. Enabling un unincorporated organization to conduct civil activities in the market in its own name gives market economy more vitality and also echoes the Sole Proprietorship Company Law and other relevant regulations.
With regard to Chapter 5 Civil Rights, quite a few good points are worth mentioning. For example, property rights come after personal rights indicating that legislators attach more importance to the latter; following the Tort Law, it prescribes the rights of privacy for the second time; personal information shall be protected; indicative norms are also set to regulate the development of the network information industry.
With regard to Chapter 6 Judicial Acts, in accordance with the legal characteristics of Civil law, both concept and content are given in a more detailed and comprehensive way.
With regard to Chapter 7 Agency, only direct agency and named agency are valid as it is regulated in the General Principles of the Civil Law of the People¡¯s Republic of China.
With regard to Chapter 8 Civil Liability, Art. 184 stipulates ¡°A person who voluntarily provides emergency assistance and causes harm to the recipient of assistance shall not assume civil liability¡± and Art. 185 provides ¡°A person who infringes upon the name, likeness, reputation, or honor of a hero or a martyr, among others, causing damage to the public interest, shall assume civil liability¡±. These two articles are controversial among scholars and conclusions are open to dispute.
With regard to Chapter 9 Extinctive Prescription, the biggest change is that an action instituted in a people¡¯s court for protection of civil rights is prescribed by three years comparing to ¡°two years¡± before. Art. 191, in particular, provides ¡°The prescriptive period of a claim for damages of a minor who has suffered sexual assault shall be calculated from the day when the victim attains the age pf eighteen¡±. Besides, this chapter borrows a lot from Judicial Interpretation of the Supreme People¡¯s Court on Issues regarding the Extinctive Prescription.
The adoption of the General Provisions of the Civil Law of People¡¯s Republic of China fully embodies Chinese characteristics. The formulation of Civil Code which is closely related to the development of politics and economy should be carried out under the background of full enhancing law-based governance of country and building a rule of law China. Professor Wang points out that everyone has his/her own preference for what shall be written in the General Provisions of the Civil Law of People¡¯s Republic of China. The final version shall reflect the common sense of all parties. Besides, the interpretation and application of law shall be out of the utmost good faith. Professor Xue holds that the General Provisions, on the one hand, keeps a lot of articles in the General Principles while, on the other hand, has its own innovation. However, path dependence leads to the situation that some provisions need further discussing and interpreting. Professor Shi appeals that people should maintain objective attitudes towards the General Provisions as well as China¡¯s legislative mechanisms. Professor Zhang Xinbao responded to each comment and question. The forum hit a huge success.
(Editor: Wu Huimin)