The Law of Obligations in the Civil Codes of the Russian Federation and the People's Republic of China: a comparative legal study
The article provides a comparative study of the norms of the law of obligations, its general provisions enshrined in the Civil Codes of the People's Republic of China and the Russian Federation. With the adoption of the first Civil Code in China in May 2020, the norms of the law of obligations were systematized, along with others. The law of obligations is an important part of civil law, as it regulates the exchange of goods in society, relations regarding the transfer of material and other goods from one person to another. The results of the study allow us to see both common, similar approaches to the regulation of civil obligations in the Chinese and Russian legal systems, as well as national peculiarities of the law of obligations of the People's Republic of China.
Keywords: Civil Code, People's Republic of China, Russian Federation, law of obligations.
2020 was a turning point for the development of jurisprudence in the People's Republic of China. It was then, for the first time in the history of China, that the Civil Code of the People's Republic of China was adopted <1>. The adoption of this legal act marked the transition to a new important stage in the history of the development of jurisprudence in the People's Republic of China, as the long path of codification of civil law, begun in the 50s of the XX century, was completed. With the adoption of the Code, the place of civil law in the legal system of the People's Republic of China has been definitively determined as the main, basic branch regulating private, primarily property, relations.
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<1>
The relevance of the specifics under consideration lies in the fact that the norms of the law of obligations regulate public relations, the importance and significance of which are indisputable. Such relations include, first of all, relations regarding the transition from one person to another of material and other goods having the economic form of goods, regarding economic turnover (commodity exchange) between subjects of civil law. It is important to note that for the Russian state, which is actively developing economic and economic relations with China at the public and private levels, knowledge of the civil law, mandatory legislation of a neighboring state, and an understanding of its features seem necessary.
An analysis of the norms of the law of obligations enshrined in the Civil Code of the People's Republic of China (hereinafter referred to as the Civil Code of the People's Republic of China), their comparison with similar norms of the Civil Code of the Russian Federation <2> (hereinafter referred to as the Civil Code of the Russian Federation) will identify the existing similarities, as well as identify specific differences in the mechanism of legal regulation of relevant relations.
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<2> The Civil Code of the Russian Federation (Part 1) of November 30, 1994 N 51-FZ (as amended on 02/25/2022).
The relevance of the comparative study of the law of obligations in Russia and China is justified not only by practical tasks, but also by epistemological ones. The new information obtained on the specifics of the legal regulation of civil obligations in the Civil Code of the People's Republic of China is important for legal comparative studies that study the legal systems of various states, their legal institutions, categories to identify common patterns of law development and its national characteristics.
Before proceeding to identify common and distinct aspects in the regulatory provisions of the Civil Code of the Russian Federation and the Civil Code of the People's Republic of China governing contractual relations, it is important to consider the structure and content of both acts.
The construction of the structure and content of the Civil Code of the People's Republic of China is based on the pandect system of civil law, widespread in the countries of the Romano-German legal family, the specificity of which lies in the differentiation of the codified act into two parts: General and Special. Also, the Civil Code of the People's Republic of China is characterized by a clear separation of property rights from obligations. The location of the legal material in the Civil Code of the People's Republic of China is based on the principle of "from general to private".
The structure of the Civil Code of the People's Republic of China contains a general part, which includes legal norms regulating important common civil law institutions <3>. The general part of the Civil Code of the People's Republic of China includes 10 chapters and 204 articles. Its peculiarity lies in the absence of separate subsections with general provisions of property and obligation law. The general norms of these sub-sectors are included in a Special Part, in section. "Property law", "Contracts". A special part of the Code consists of sub-branches of civil law, traditional for the pandect system.
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<3> The Civil Code of the People's Republic of China. The official text (in Chinese); The Civil Code of the People's Republic of China / Ed. P.V. Troshchinsky. M.: Sinosphere, 2020; The Civil Code of the People's Republic of China (Translated into Russian by P.V. Bazhanov).
As for the Civil Code of the Russian Federation, a similar concept is observed in relation to its internal structure. The regulatory material of the Civil Code of the Russian Federation is also formed in accordance with the draft system and includes General and Special parts. The General Part (Part I) contains provisions common to all legal institutions of private law. For example, the General Part of the Civil Code of the Russian Federation regulates provisions concerning the legal capacity and legal capacity of citizens, the legal status of individuals and legal entities, the conduct of entrepreneurial activities by citizens <4>, etc. But the structure and content of the General Part of the Civil Code of the Russian Federation differs from the Code of the People's Republic of China in a more complex and detailed system of construction.
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<4> Reliable N.N. Entrepreneurial activity as a subject of legal regulation in foreign legislation // International public and private law. 2019. N 4. pp. 30-33.
Unlike the Civil Code of the People's Republic of China, the structure of the Special Part of the Civil Code of the Russian Federation includes such sub-branches of civil law as private international law and the right to the results of intellectual activity. In the PRC, these legal relations are regulated by separate laws. Unlike the PRC, family legal relations in the legal system of the Russian Federation are the subject of an independent branch of family law, which has a separate code.
As already noted, the relationship of obligations is an important part of the subject of civil law <5>. Such relations are formalized using categories and norms of the law of obligations.
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<5> Civil law: In 4 vols. 3: Law of obligations: Study for students. universities / Ed. by E.A. Sukhanov. 3rd ed., reprint. and additional M.: Walters Kluwer, 2005. pp. 11-17.
It is important to determine how the law of obligations is regulated in the Civil Code of the People's Republic of China <6>, and compare its normative provisions with the mechanisms of the law of obligations in Russia.
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<6> The Civil Code of the People's Republic of China (Translated into Russian by P.V. Bazhanov).
The regulatory structure of the PRC Code testifies to the peculiarities of the system of law of obligations and the conceptual approach to its understanding. The Chinese legislator did not follow the traditional system of law of obligations, which contains General and Special parts. Unlike the generally accepted practice of including general provisions on obligations in civil codes, which is followed by Russian civil legislation, the Civil Code of the People's Republic of China does not contain an independent section with general legal provisions on obligations.
Despite the fact that the General Part of the Civil Code of the People's Republic of China almost completely repeats the General part of the Civil law of the People's Republic of China (2017) <7>, the wording of individual articles on obligations in it has been partially changed. In particular, in Article 118, the phrase "rights of obligation" was replaced by the phrase "right of claim".
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<7> The general part of the civil law of the People's Republic of China (Translated into Russian by P.V. Bazhanov).
It is important to note that the normative provisions of the General Part of the Civil Law of the People's Republic of China (2017) replaced the General Provisions of the Civil Law of the People's Republic of China (1986, as amended in 2009) <8>, which traced the traditional approach to the regulation of contractual relations. The old law (1986) in Chapter V "Civil Rights" contained an independent paragraph "Law of obligations", which was subsequently excluded from the General Part of the Civil Law of the People's Republic of China (2017) and the Civil Code of the People's Republic of China. In the content of the deleted paragraph "Law of obligations", general aspects of obligations providing for a legislative interpretation of the concept of "obligations" have found their normative reflection.
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<8> General provisions of the Civil law of the People's Republic of China (Translated into Russian by P.V. Bazhanov).
Subsequent laws - the General Part of the Civil Law of the People's Republic of China (2017) and the Civil Code of the People's Republic of China - not only excluded a separate paragraph on the law of obligations, but also changed the legal terminology.
Not only has the section of general provisions on obligations been excluded from the Civil Code of the People's Republic of China, but there is also no single section combining various specific types of obligations. Separate norms regulating legal relations of obligations are placed in different parts of the Code: in the Book. 1 "General part", in the book. 3 "Contracts", in book 7 "Tort liability".
Another system of law of obligations exists in the Civil Code of the Russian Federation. As a specific feature of the law of obligations regulated by the norms of the Civil Code of the Russian Federation, it can be indicated that the division into General and Special parts is characteristic. The first part of the Civil Code includes in its substantive material section. III "General part of the law of obligations", consisting of subsections "General provisions on obligations" and "General provisions on the contract" <9>. The section "Certain types of obligations" includes normative provisions regulating specific types of contracts, obligations due to harm (torts), obligations due to unjustified enrichment, etc. This section is a special part of the law of obligations.
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<9> The Civil Code of the Russian Federation (Part 1) of November 30, 1994 N 51-FZ (as amended on 02/25/2022).
Due to the fact that the Civil Code of the People's Republic of China does not provide for a general section of the law of obligations, certain norms regulating general provisions on obligations have found their actual reflection in the General Part of the Civil Code of the People's Republic of China. Thus, chapter V "Civil Rights" regulates the understanding of what obligations are, and also explains what is the characteristic specificity of the grounds for their occurrence. Article 118 establishes that "subjects of civil legal relations, in accordance with the legislation, have binding rights (rights of claim). The right of claim is the right of the rightholder to demand from a certain obligated person the performance of a certain action or abstention from a certain action arising from a contract, tort, action without instructions, unjustified enrichment, as well as from other norms provided for by law" <10>. The peculiarity of this interpretation is that the concept of obligation is given only through the prism of a person's subjective right - the right of claim. At the same time, it is not taken into account that the specifics of the obligation is the existence of both rights and obligations for its participants (subjects). Attention is also drawn to the absence of the terms "creditor", "debtor", used in relation to participants in contractual relations in the pandect system of civil law.
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<10> The Civil Code of the People's Republic of China (Translated into Russian by P.V. Bazhanov).
The normative provisions of the Russian civil legislation determine that the obligation is characterized by the presence of two subjects of law: the debtor and the creditor. Accordingly, it is important to note that for one person, who is the debtor, the law establishes specific obligations for carrying out certain work, transferring property or not performing certain actions, etc. Another subject of these legal relations has the legal right to demand from the debtor the fulfillment of his obligations (clause 1 of Article 307 of the Civil Code of the Russian Federation) <11>.
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<11> The Civil Code of the Russian Federation (Part 1) of November 30, 1994 N 51-FZ (as amended on 02/25/2022).
Accordingly, the main difference in understanding the legal nature of the obligation in the Russian Federation and the PRC is that domestic civil legislation considers the obligation relationship through the prism of the rights and obligations of its two subjects, while the definition of "obligation", formed in the Civil Code of the People's Republic of China, does not contain an indication of the right of the creditor and the obligations of the debtor <12>.
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<12> Popondopulo V.F. Law of obligations: general characteristics and problems // Leningrad Law Journal. Scientific-theoretical and information-practical interregional journal. 2009. N 1(15). p. 12.
As for the grounds for the occurrence of obligations, the Civil Code of the People's Republic of China specifies both contractual and non-contractual (torts, quasi-agreements) grounds for the occurrence of obligations, which fully corresponds to the pandect system of civil law.
In the Civil Code of the Russian Federation, the design of the grounds for the occurrence of obligations differs slightly from the Chinese one. The Civil Code of the Russian Federation highlights contracts and other transactions, causing harm, unjustified enrichment, as well as other grounds specified in the Code (paragraph 2 of Article 307 of the Civil Code of the Russian Federation) among the aspects attributed to the grounds for the occurrence of obligations. Other grounds for civil obligations are established in Article 8 of the Civil Code of the Russian Federation.
Thus, despite the structural features of the location of the normative material, it is possible to establish a unified approach to understanding the grounds for the occurrence of obligations in the Civil Code of the People's Republic of China and the Civil Code of the Russian Federation.
The study of the Civil Codes of the People's Republic of China and Russia allows us to draw conclusions about the peculiarities of the law of obligations, primarily in the civil law of the People's Republic of China.
The structure and content of the Civil Code of the People's Republic of China in the main provisions are based on the principles of the pandect system of civil law, which is characterized by the allocation of general and special parts, as well as a clear separation of property rights from obligations. This suggests that the principles, methods, structure, concepts, and so on, traditional for the pandect system, are used in the regulation of contractual relations in the Civil Code of the People's Republic of China.
The study of the Civil Code of the People's Republic of China showed that, despite the preservation of the traditional approach to understanding the legal nature of contractual relations, their regulatory and legal regulation differs in significant national characteristics.
The Civil Code of the People's Republic of China has not formed a traditional, unified system of law of obligations, including General and Special parts. There is no General part of the law of obligations in the Code, and a special part is represented by disparate sections of contract law and tort liability that are not combined into a single structure.
The Civil Code of the People's Republic of China, unlike the Civil Code of the Russian Federation, does not contain a definition of the concept of obligation adopted in the pandect system. The peculiarity of the Chinese interpretation of the obligation is that it is given only through the prism of the subjective rights of the copyright holder to require the obligated person to perform a certain action or abstain from a certain action. At the same time, the obligation of the debtor to perform actions in favor of the creditor is not established. The terminology of binding relations has also been changed in the Civil Code of the People's Republic of China. The Civil Code of the People's Republic of China does not use the terms "law of obligations", "creditor", "debtor".
