Characteristic features of the Civil Code of the People's Republic of China
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One of the most important events in the history of modern Chinese law was the adoption by the National People's Congress in 2020 and the entry into force of the first Civil Code in 2021. The work on the Code was carried out for a considerable time, its appearance was preceded by several unsuccessful attempts at codification. The article argues that the Civil Code of the People's Republic of China is based on the provisions of continental, general, socialist and traditional Chinese law. Using the method of comparative legal analysis, the features of the structure and content of the Civil Code of the People's Republic of China are revealed. In particular, a number of provisions related to the digitalization of the economy are highlighted, which can be recommended to be used by the domestic legislator to improve Russian legislation. It is argued that although structurally the Civil Code of the People's Republic of China has original features, it uses the German Civil Code as its basis. It is concluded that the section of the Code devoted to property law reflects the existing state system in the PRC to the greatest extent. It is also proved that a number of rules on legal entities and organizations that do not have the status of a legal entity are formulated based on the traditions of Chinese society.
Keywords: NPC, China, codification, property law, inheritance, usufruct, contract, PRC law, marriage and family, socialist law.
The first Civil Code in the history of the People's Republic of China (hereinafter referred to as the Civil Code of the People's Republic of China) was adopted by the National People's Congress on 05/28/2020 and entered into force on 01.01.2021 <1>. Simultaneously with the beginning of the provisions of the Civil Code of the People's Republic of China, nine laws of the People's Republic of China become invalid: General provisions of civil law of the People's Republic of China, Fundamentals of civil law of the People's Republic of China, the Law "On Marriage", the Law "On Inheritance", the Law "On Adoption", the Law "On enforcement of obligations", the Law "On Property Rights", the Law "On Liability for violation of rights", the Law "On Contracts".
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<1> The Civil Code of the People's Republic of China dated 05/28/2020 (In Chinese)
The scale of this event allows us to speak of it as one of the most important stages in the development of law, the state and society of the People's Republic of China. As Chinese President Xi Jinping noted in his speech during the first collective study with the participation of members of the Politburo of the Central Committee of the Chinese Communist Party (CPC Central Committee) of the 19th convocation, "The Civil Code occupies an important place in the socialist legal system with Chinese specifics. This is a fundamental law that strengthens the foundations, stabilizes expectations and benefits in the long run. It is important for promoting the comprehensive rule of law, accelerating the construction of a socialist country with the rule of law and for the development of a socialist market economy." <2> According to Chinese scientists, the adoption of the Civil Code has undoubtedly become an important historical event in the history of the development of private law in China, which opened a new chapter and a new era of law development in the PRC <3>. As P.V. Troshchinsky points out in the introduction to the first translation into Russian of the Civil Code of the People's Republic of China in Russian jurisprudence, the adoption of this law indicates that "by 2021 The People's Republic of China has formed a socialist civil law system with Chinese specifics and codified civil legislation." <4>
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<2> Xi Jinping. Fully understand the importance of adopting and applying the Civil Code and better protect the legitimate rights and interests of people in accordance with the law. (In Chinese)
<3> Xue Bo. On the functional adjustment of the system of judicial interpretation and case management in the era after the adoption of the Civil Code // Hebei Law Journal. 2021. N 2. (In Chinese)
<4> The Civil Code of the People's Republic of China / ed. P.V. Troshchinsky. M.: Sinosphere, 2020. p. 41.
Due to the fact that China is, firstly, a neighboring state for the Russian Federation, and secondly, a leading trade and political partner, the entry into force of the first Civil Code of the People's Republic of China is of great importance not only for the Russian science of comparative law, but also for domestic business. Therefore, in order to better understand the legal foundations of Russia's strategic cooperation with China, it seems important and necessary to study the Civil Code of the People's Republic of China. This article aims to identify the key features of the PRC Civil Code. For this purpose, the background of the adoption of the studied normative legal act is considered, its structure is reviewed and a general description of the legal institutions contained in it is given. This will allow us to identify the main directions for further research of the Civil Code of the People's Republic of China in order to enrich Russian jurisprudence with new knowledge, develop proposals for improving domestic legislation, as well as develop recommendations for trade and economic cooperation with China.
Considering the first Civil Code of the People's Republic of China, it should be borne in mind that this normative legal act is the first civil code of socialist China. Back in 1911, the draft civil code of the Qing Empire was published, which, due to the revolutionary events in the country, was not adopted, but was also not forgotten, and work on it continued in republican China <5>. In 1929-1931, parts of the Civil Code of the Republic of China were adopted. It consisted of five books: "General provisions", "Obligations", "Property rights", "Family Rights", "Inheritance". However, after the overthrow in 1949, After the Kuomintang regime and the proclamation of the People's Republic of China, the Civil Code of the Republic of China was abolished.
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<5> Dudin P.N., Tsyretorov A.I. The formation of Chinese civil law in 1912-1929 (pre-codification period) // Pravo. Journal of the Higher School of Economics. 2019. N 5. pp. 237-253.
The Communist Party of China (CPC) has raised the issue of drafting a civil code several times. In 1952 and 1962, attempts were made to prepare a civil code on the Soviet model, but due to various political and socio-economic reasons, including the "cultural revolution", they were unsuccessful. The codifications of 1979 and 2001 were also unsuccessful. In order to promptly respond to the challenges associated with the implementation of a policy of reform and openness in the field of civil lawmaking, the Chinese legislator gave priority to certain highly specialized laws. According to the researchers, this is due to "the country's policy of "walking on two legs" in the field of legal construction. The course under consideration, on the one hand, involves working on a draft of a single regulatory legal document for a specific branch of law. On the other hand, while such a document (code) is not ready, "the adoption of separate laws is being carried out everywhere, in which there is a need and for which conditions are maturing" to regulate certain issues of civil law activity" <6>. This approach is typical not only for the civil law of the People's Republic of China, but also for other industries <7>.
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<6> Troshchinsky P.V. The legal system of China: a monograph. M.: Publishing House of IDV RAS, 2016. p. 224.
<7> Troshchinsky P.V. Legal policy and legislation of the People's Republic of China during the period of reforms and openness // Law studies. 2019. Vol. 63. N 2. P. 305.
Meanwhile, "the long path of studying the legal theory and practice of codification of civil legislation from the adoption of the model of Soviet civil law to a positive assessment of private law institutions of the European continent and the United States ended with positive unprecedented results" <8> when in 2014 the IV Plenum of the CPC Central Committee of the 18th convocation approved the plan for the codification of civil law of the People's Republic of China. As Professor Wang Zhihua notes, "after 2014, the process of codification of civil legislation began to develop by leaps and bounds and soon crowned with the first successes" <9>. So, on 03/15/2017, the National People's Congress (hereinafter - the National People's Congress) adopted the Law of the People's Republic of China "Fundamentals of Civil Legislation of the People's Republic of China", which entered into force on 10/01/2017. The emergence of the Foundations of the Civil Legislation of the People's Republic of China was perceived as an important stage in the reform of civil law and the codification of civil legislation <10>, which "became a vital measure to regulate the legal sphere of the People's Republic of China" <11>. According to Chinese researchers, it "laid down the key principles of the future Civil Code of the People's Republic of China, the rights and freedoms of citizens, and reflected the most important socialist values of Chinese society" <12>.
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<8> Wang Zhihua. Revolutions and codification of Chinese civil law // Bulletin of St. Petersburg University. Right. 2018. N 3. P. 426.
<9> Wang Zhihua. The way of codification of civil legislation in China // Lex russica (Russian law). 2020. N 73 (3). P. 138.
<10> Yerbakhaev E.A. New Basic provisions of the civil law of the People's Republic of China // Bulletin of St. Petersburg University. Right. 2019. N 10 (2). P. 402.
<11> Fokov A.P. Codification of civil legislation in the People's Republic of China (general provisions): History and modernity // Izvestiya Yugo-Zapadnogo gosudarstvennogo universiteta. 2018. Vol. 22. N 2 (77). p. 131.
<12> Wang Haijun. The Law "General Part of the Civil Law of the People's Republic of China" and the development of Chinese civil law // Bulletin of St. Petersburg University. Right. 2018. N 3. P. 414.
Thus, the first successful codification of civil legislation in China took 6 years. The development of the Civil Code in the PRC in its modern form began in 2014 and went through two main stages. The first stage ended in 2017 with the adoption of the Fundamentals of the Civil Legislation of the People's Republic of China, which paved the way for the Civil Code of the People's Republic of China. The second stage lasted from October 2017 to May 2020, when the Congress of Deputies of the National People's Congress voted for the Civil Code of the People's Republic of China, with the adoption of which the era of uncodified civil legislation in socialist China ended <13>. This whole process was based on the rich experience of previous attempts at codification, which reflects the characteristic features of the Chinese mentality, among which one of the main ones is rightly called "slowness in making important decisions" <14>.
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<13> On the process of adopting the Civil Code of the People's Republic of China, see: Preface to the Civil Code of the People's Republic of China / ed. P.V. Troshchinsky. pp. 38-39.
<14> Troshchinsky P.V. The legal system of the People's Republic of China: formation, development and characteristic features // Bulletin of the O.E. Kutafin University (MGUA). 2015. N 5. P. 116.
Meanwhile, acts of judicial interpretation are of great importance for China, which, in connection with the adoption of the Civil Code of the People's Republic of China, are becoming more in demand than ever. As the Chinese authors note, although the Civil Code has become a new starting point for Chinese civil law, this does not mean that it has solved all the problems in building civil law once and for all. After the entry into force of the Civil Code, it is still necessary to clarify the meaning of the legal provisions and the applicable legal framework in time, as well as to maintain the uniformity, stability and adaptability of the Civil Code <15>. Given the importance of the interpretation of the Civil Code of the People's Republic of China, in December 2020 the Supreme People's Court issued a number of interpretative acts concerning the procedure for applying the Civil Code of the People's Republic of China, including to relations that arose before its entry into force. These include, in particular, the Interpretation of the Supreme People's Court No. 1 "On the application of law in the consideration of disputes under construction contracts in construction projects" <16>, the Interpretation of the Supreme People's Court No. 1 "On the application of the Civil Code of the People's Republic of China to Property Rights" <17>, the Interpretation of the Supreme People's Court No. 1 "On the application of the section of the Civil Code of the People's Republic of China on inheritance" <18>, Interpretation of the Supreme People's Court No. 1 "On the application of the provisions of the Civil Code of the People's Republic of China on marriage and family" <19>, Interpretation of the Supreme People's Court "On the entry into force of the Civil Code of the People's Republic of China" <20>.
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<15> Huang Zhong. On the fate of judicial interpretation after the adoption of the Civil Code // Chinese Law. 2020. N 6. (In Chinese)
<16> Interpretation of the Supreme People's Court No. 1 "On the application of law in the consideration of disputes under construction contracts in construction projects" dated 12/29/2020. (In Chinese)
<17> Interpretation of the Supreme People's Court No. 1 "On the application of the Civil Code of the People's Republic of China to property rights" dated 12/29/2020. (In Chinese)
<18> Interpretation of the Supreme People's Court No. 1 "On the application of the section of the Civil Code of the People's Republic of China on Inheritance" dated 12/29/2020. (In Chinese)
<19> Interpretation of the Supreme People's Court No. 1 "On the application of the provisions of the Civil Code of the People's Republic of China on marriage and Family" dated 12/29/2020. (In Chinese)
<20> Interpretation of the Supreme People's Court "On the Entry into force of the Civil Code of the People's Republic of China" dated 12/29/2020. (In Chinese)
The Civil Code of the People's Republic of China consists of 1,260 articles, which are combined into chapters and 7 sections ("General provisions", "Property rights", "Contracts", "Personal non-property rights", "Marriage and Family", "Inheritance", "Liability for violation of rights"). A comparison of the structure of sections of the Civil Code of the People's Republic of China with the Civil Code of the Russian Federation, the Civil Code of the RSFSR of 1964, the German Civil Code <21> and the French Civil Code <22> suggests that the German approach has a significant impact on it. However, the presence, for example, of such a section as "Responsibility for violation of rights" indicates that the Chinese legislator went his own way in constructing the civil code, albeit with an eye to continental law. According to the researchers, when adopting the Civil Code of the People's Republic of China, the Chinese legislator "remained faithful to the traditions of ancient Chinese and socialist law, adopted the progressive achievements of foreign legal science, included in the content of the document a number of norms of an international legal nature, "keeping pace" with the processes of globalization and integration" <23>.
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<21> Gesetzbuch.
<22> Code Civil des Frangais.
<23> The Civil Code of the People's Republic of China / ed. P.V. Troshchinsky. p. 41.
Analyzing the Civil Code of the People's Republic of China, it is possible to identify a number of features of interest to Russian researchers and legislators due to their low level of study, as well as originality, which allows them to be used to improve regulatory legal acts.
According to Article 2 of the Civil Code of the People's Republic of China, the subject of civil legislation is the personal and property relations of equal subjects: individuals, legal entities and organizations without the formation of a legal entity. From this article it can be seen that in the PRC, firstly, corporate relations are not considered as a separate type of relationship, and secondly, organizations without the formation of a legal entity are distinguished as a separate subject of law. There is no such type of entity in Russian law.
The Chinese legislator approached the definition of the basic principles of civil law in a very original way. In Articles 5-9 of the Civil Code of the People's Republic of China, he attributed to them the principles of voluntariness, fairness, integrity, legality and economy. At the same time, economy implies conducting economic activities in such a way that natural resources are used in the most efficient way, and the harm caused to the environment is minimal. This principle is directly related to the struggle for the environment proclaimed in the People's Republic of China.
As already mentioned, the Chinese legislator adhered to Chinese specifics in determining subjects of civil law. This specificity is also expressed in the types of these subjects. For example, according to Article 55 of the Civil Code of the People's Republic of China, individuals include agricultural contracting farms, which are understood as rural collective economic organizations, whose members, in accordance with the law, have received the right to contract land in villages and manage in the form of a family contract. To some extent, this subject resembles a traditional peasant community.
The Chinese standard-setter did not show any originality in determining the organizational and legal forms of commercial legal entities; these include, according to Article 76 of the Civil Code of the People's Republic of China, limited liability companies, joint-stock limited liability companies and enterprises. All of them are analogues of Russian limited liability companies, joint-stock companies and unitary enterprises, respectively. As for non-commercial legal entities, they are treated in accordance with art. The Civil Code of the People's Republic of China includes budgetary institutions, public associations, foundations, and social service organizations.
Separately, Article 96 of the Civil Code of the People's Republic of China identifies special types of legal entities: state bodies, rural collective economic organizations, rural-urban cooperative organizations, primary self-government organizations (house committees, village committees). The need to distinguish these organizational and legal forms as a separate type is probably due to the presence of administrative functions in these subjects. In Russia, however, this reason has not led to the emergence of this kind of classification of legal entities.
Article 102 of the Civil Code of the People's Republic of China provides a list of organizations without the formation of a legal entity. It includes individual private enterprises (analogous to individual entrepreneurs), partnerships, professional service providers (analogous to self-regulatory organizations), etc. The key difference between these entities and legal entities is that they do not have a management structure, but can only conclude transactions on their behalf.
The Civil Code of the People's Republic of China distinguishes transactions that are invalid due to their invalidity, and invalid transactions recognized as such by a court. Meanwhile, an analysis of this regulatory legal act has shown that it does not divide transactions into insignificant and disputed ones. Based on the consequences of the invalidity of transactions, transactions that are invalid due to their invalidity and invalid transactions recognized as such by the court do not differ from each other in any way. This approach can hardly be called more successful than the one used in the Civil Code of the Russian Federation. Meanwhile, the position of the Chinese legislator requires reflection by domestic researchers specializing in the validity of transactions.
Chapter 8 of the section "General provisions" is devoted to civil liability. Unlike the separate section "Liability for violation of rights", it contains general concepts and conditions for bringing to civil liability, therefore there are no contradictions between these structural elements of the Civil Code of the People's Republic of China. Article 179 specifies the forms of civil liability. These include removal of an obstacle, compensation for damages, elimination of danger, refutation, apology, termination of encroachment, restoration of the original condition, repair, alteration, replacement, penalty, punitive damages. From this it can be seen that in the PRC, the form of civil liability means measures to protect the right and measures of responsibility.
Article 184 of the Civil Code of the People's Republic of China is also of interest, which stipulates that if, during the voluntary provision of emergency assistance, harm was caused to the person who received such assistance, the person who provided assistance does not bear civil liability. This rule appeared as a result of cases when citizens injured in traffic accidents filed lawsuits against random eyewitnesses who tried to help them, but did it unskilled. In Russia, the issue of adopting such a norm is not on the agenda yet, but the domestic legislator should pay attention to the Chinese experience.
Comparing the provisions of the Civil Code of the People's Republic of China and the Civil Code of the Russian Federation on the limitation period, one can find a number of fundamental differences in the issues of suspension and interruption of the limitation period. According to Article 194 of the Civil Code of the People's Republic of China, the statute of limitations is suspended as a result of force majeure; the absence of a legal representative from an incapacitated person; in the case when, after the opening of the inheritance, the heir or executor of the will is not established; in the case when the creditor is under the control of the debtor; if there are other obstacles. In Article 202 of the Civil Code of the Russian Federation, of these circumstances, there is only an act of force majeure. As for the interruption of the limitation period, according to Article 195 of the Civil Code of the People's Republic of China, the limitation period is interrupted in cases when the creditor has submitted a claim for performance, the debtor has agreed to fulfill the obligation, the creditor has sued the court or appealed to arbitration, if there are other circumstances.
So, the "General Provisions" of the Civil Code of the People's Republic of China contain a significant number of norms that have specifics, for example, concerning the types of subjects of civil law. Meanwhile, the study of certain aspects may be useful for determining trends in the development of Russian law.
The socialist system of China has completely determined the content and structural content of the section "Property rights".
Articles 246-254 of the Civil Code of the People's Republic of China specify objects that are state-owned (urban lands, subsoil, waters, water area, cultural monuments, means of state defense, radio frequency spectrum). Article 260 of the Civil Code of the People's Republic of China lists objects that are collectively owned (educational, scientific, sports facilities; agricultural land; pastures; irrigation systems). According to art. 266 of the Civil Code of the People's Republic of China, individuals have the right of ownership of their own legitimate income, real estate, household items, means of production, raw materials and other immovable and movable property.
Thus, there is no right of private ownership of land in the PRC. A citizen may own a house located on the land, but not the land itself. In this regard, questions arise about how legal entities can extract resources, how farmers carry out agricultural activities, on the basis of which developers can conduct construction. This problem in China is solved through the widespread use of usufruct - the right to use, own and profit in relation to someone else's immovable or movable property. The Civil Code of the People's Republic of China distinguishes, among other things, special types of usufruct.
The right of land contract (Article 331 of the Civil Code of the People's Republic of China), according to which rural collective economic organizations have the right to own, use and profit in respect of arable land, pastures, forests, as well as the right to cultivate plants, trees, livestock and other agricultural activities, is urgent, the deadlines for certain types are set in Article 332 of the Civil Code China.
The right to use land for construction purposes (Article 344 of the Civil Code of the People's Republic of China), which means the right to own, use and profit in relation to state land for the construction of buildings and their extensions, can be separately established for underground, aboveground territories and the surface of the earth.
The right to use land in a residential area (Article 362 of the Civil Code of the People's Republic of China) is the right to own and use land in collective ownership for personal purposes.
The right of residence (Article 366 of the Civil Code of the People's Republic of China) is the right to own, use and profit in relation to someone else's residential premises on the basis of an appropriate agreement. This right is not inherited and, unless otherwise specified in the contract, is granted free of charge.
Another feature of the property law of the People's Republic of China is the presence of neighborhood law. According to Articles 288-296, neighborly relations include the opportunity to use someone else's real estate to ensure passage, use water, lay water pipes, heating networks and gas pipelines, ventilation and lighting equipment, and conduct construction work. It can be mistakenly assumed that these relations are actually regulated by an easement, but this is not the case. An easement under the Civil Code of the People's Republic of China is the use of someone else's real estate in order to increase the efficiency of using their own real estate (Articles 372-385 of the Civil Code of the People's Republic of China), while neighborly law ensures the realization by a person owning a neighboring real estate object of his legal ownership right. In addition, the easement is strictly contractual in nature, while a contract is not needed to implement the neighbor's right.
In Chinese law, there is a "security right of property", which includes a mortgage, a pledge with the transfer of property to the creditor, and retention. Russian science and practice have long known these ways of securing obligations, but they are not united into a single institution. Note that a fairly large number of norms in the Civil Code of the People's Republic of China are devoted to retention. A ban on the retention of state property has been fixed, the procedure for holding a thing and its sale has been established.
Thus, the property law of the People's Republic of China is of interest from the point of view of how a state with a socialist system uses the methods of a market economy, while simultaneously maintaining the priority of state ownership and encouraging the development of private initiative. It seems that it is in this section that the principles of Soviet law are most evident.
The section of the Civil Code of the People's Republic of China "Contracts" includes three subsections: "General provisions", "Types of contracts", "Quasi-agreements".
The subsection "General provisions" is largely based on the same principles as its Russian counterpart. However, it may be of interest that in Article 469, the Chinese legislator does not establish a closed list of forms of contracts, indicating that contracts can be concluded in writing, orally or otherwise. In addition, the approach to determining the order of execution of the contract is innovative. According to art. 512 of the Civil Code of the People's Republic of China in the execution of an agreement concluded via the Internet, the subject of which is the transfer of an object through network means of communication, the time of transfer of the object is the time when the object transferred in accordance with the subject of the agreement is entered into the system specified by the other party and access is opened for its search and identification. Given the rapid development of digital technologies, this rule deserves the attention of the Russian legislator, as it will allow to regulate relations on the purchase and sale of virtual objects.
The Civil Code of the People's Republic of China contains the following types of contracts: purchase and sale agreement; contract for the supply of electricity, water, gas, thermal energy; gift agreement; loan agreement; surety agreement; lease agreement; financial lease agreement (leasing); factoring agreement; contract; construction contract; passenger transportation agreement, cargo transportation agreement, multimodal cargo transportation agreement; technical agreement; storage agreement; warehouse storage agreement; assignment agreement; utility services agreement; commission agreement; agency agreement; a partnership agreement (this agreement is an analogue of a simple partnership agreement in Russian law).
Based on the list of contracts, it can be seen that in the Civil Code of the People's Republic of China there are no such contracts as an annuity agreement, a residential lease agreement, there are no all types of financial contracts (bank account agreement, bank deposit, insurance, etc.). The absence of these types of contracts is due to the fact that they are regulated by special legislation. This state of affairs is a serious flaw in the drafters of the analyzed normative legal act. It is noteworthy that the Civil Code of the People's Republic of China does not have the usual division of purchase and lease agreements into types for Russian lawyers, which can also hardly be assessed positively due to significant differences between business and consumer relations. At the same time, surety, instead of perceiving it as a way of securing an obligation, is considered as a separate type of contract, which is aimed at ensuring the fulfillment of an obligation.
A number of agreements in the Civil Code of the People's Republic of China contain provisions that are quite interesting to study. Thus, under the gift agreement, according to Article 664 of the Civil Code of the People's Republic of China, the donor is obliged to compensate for losses if damage occurs to the property intended for donation. In accordance with Article 666 of the Civil Code of the People's Republic of China, the obligation to donate may not be fulfilled in the event of a clear deterioration in the economic situation of the donor, a serious impact of the obligation on his economic activities or family life. In addition, donation is allowed in relation to the fetus. The loan agreement is no less interesting. Article 680 of the Civil Code of the People's Republic of China, for example, prohibits issuing loans at high interest rates. The baggage transportation agreement contains rules for the transportation of hand luggage (Article 817 of the Civil Code of the People's Republic of China), and the passenger transportation agreement contains a large number of rules concerning passenger accommodation and compliance with the requirements of the carrier (Articles 819 - 822 of the Civil Code of the People's Republic of China). The utility services agreement contains provisions on the obligation of the service provider to ensure the safety of the owner of the premises, to carry out landscaping and protection of buildings and structures (Article 937 of the Civil Code of the People's Republic of China). At the same time, a ban has been imposed on the extrajudicial disconnection of electricity, water and gas from the debtor (Article 944 of the Civil Code of the People's Republic of China).
Separately, consider a technical agreement unknown to Russian law. According to Article 843 of the Civil Code of the People's Republic of China, a technical agreement is an agreement under which the parties establish mutual rights and obligations regarding technical developments and their transfer, technical permits, technical consultations or maintenance. The technical agreement is divided into the following types:
- technical development agreement - an agreement concluded for the development of new equipment, new products, new technology, a new range of products or new materials, as well as for the purpose of conducting systematic research for the development of technology;
- a technology transfer agreement and a technical license agreement that regulate the procedure for using a patent and transferring a patent-protected right, a technical secret to another person, and this agreement also regulates the procedure for assigning the right to file a patent application;
- a technical consultation agreement, which is a contract for conducting research on special technical issues through the provision of reports and materials;
- a maintenance contract, which is understood as a construction contract at the request of the other party.
The analysis of the varieties of a technical agreement suggests that it is nothing more than a mixture of a contract for the performance of research, development and technological work with a license agreement.
As for quasi-treaties, their presence in the Civil Code of the People's Republic of China indicates the influence of the common law system on Chinese legislation along with continental law. Quasi-agreements, they are also implied contracts, are characteristic of English law, where they are understood as obligations arising in the absence of an agreement between the parties <24>. China, applying this approach, attributed obligations arising from other people's affairs without instructions, as well as unjustified enrichment, to quasi-agreements.
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<24> Belykh V.S. Contract law of England: comparative legal research: monograph. Moscow: Prospect, 2017. 208 p.
So, the treaty law of the People's Republic of China is a mixture of the treaty law of England and the law of continental Europe with the inclusion of features characteristic of China. In general, the section of the Code devoted to contracts can be highly appreciated. However, despite the innovativeness of a number of provisions, as well as the fact that the Civil Code of the People's Republic of China, as the researchers note, filled in many gaps and resolved numerous long-standing disputes, it is still imperfect, and therefore changes and additions are necessary <25>.
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<25> Liu Kaixiang. Comments on the system of termination of contracts under the Civil Code and suggestions for its improvement // Tsinghua Law Journal. 2020. N 3. (In Chinese)
The section "Personal non-property rights" provides a non-exhaustive list of personal rights. These include, in particular, such rights as the right to an image, the right to a name and a name, the right to honor and dignity, the right of honor, the right to life, health, the right to privacy and personal information, and the right to a body.
The right to the body, unknown to Russian legal science, attracts attention. This personal right applies both to the inviolability of the body of a living person and to the inviolability of the body and its parts of a deceased person. According to Article 1007, the purchase and sale of dead bodies in any form is prohibited, such transactions are invalid. Relatives of the deceased, whose right to the body has been violated, can protect it by filing a lawsuit. The right to a body also includes a ban on sexual harassment. Article 1010 of the Civil Code of the People's Republic of China provides for civil liability for harassment, including through speech and images.
The section of the Civil Code of the People's Republic of China devoted to marriage and family contains norms relevant to modern Chinese society, where the family is in the process of transformation and transition from the patriarchal to the modern way, but where the importance of traditions and ancestral worship is still great. In particular, Article 1043 establishes the obligation of spouses to respect each other, Article 1046 prohibits interference in marriage, Article 1069 contains the obligation of children to respect the marital rights of their parents and not to interfere in divorce or remarriage. Article 1079 establishes the conditions of divorce unusual for Russian specialists, including loss of feelings and separation for two years, addiction to gambling, drugs, alcohol, destruction of mutual affection, and abuse. Attention is also drawn to the norms that, upon dissolution of marriage, children under two years old live with their mother (Article 1084 of the Civil Code of the People's Republic of China), and the spouse guilty of divorce in connection with treason, violence, concealment of the fact of bigamy, pays compensation to the spouse affected by this (Article 1091 of the Civil Code of the People's Republic of China).
The section of the Civil Code of the People's Republic of China "Inheritance", among other things, is interesting in that it provides for forms and procedures unknown to Russian law for making a will. Article 1134 of the Civil Code of the People's Republic of China establishes such a method of probate as a handwritten will. It is believed that a citizen can make a statement in handwritten form and its validity does not require certification from a notary or witnesses. It is noteworthy that the role of a notary in making a will in China is minimal. A citizen may apply to him (art. 1139 of the Civil Code of the People's Republic of China), but may also resort to other opportunities provided by the Code. In particular, according to Article 1136 of the Civil Code of the People's Republic of China, a will can be drawn up in printed form in the presence of witnesses who certify it with their signatures. A will can also be made orally; for example, Article 1137 of the Civil Code of the People's Republic of China provides for a will in the form of an audio recording in the presence of witnesses who certify the will by pronouncing their data. If the testator is in a critical condition, according to art. 1138 of the Civil Code of the People's Republic of China, an oral will can be made without an audio recording with the obligatory presence of at least two witnesses.
Thus, the Chinese legislator provides citizens with a wide range of ways to make a will. The experience of China, if it is successful, needs to be studied to determine whether it is possible and advisable to introduce such methods of making a will in Russia. The situation with the coronavirus pandemic has shown that it is often very difficult for a testator to contact a notary due to various kinds of anti-epidemiological restrictions. In this case, the Chinese approach to the method of making a will could be useful.
Section VII "Liability for violation of rights" includes the following chapters: "General provisions"; "Compensation for damage"; "Provisions on persons responsible"; "Product liability"; "Liability in case of road accidents and accidents involving motor vehicles"; "Liability for damage caused by treatment"; "Responsibility for environmental pollution and causing environmental damage"; "Responsibility for high-risk activities (high-altitude work, earthworks, operation of nuclear installations, aircraft)"; "Damage related to the maintenance of animals"; "Damage caused by buildings and their outbuildings." It can be seen from the above that this section is devoted exclusively to liability in connection with causing harm.
Considerable attention in this section is paid to liability and the procedure for compensation in case of injury to health. Thus, in Article 1222 of the Civil Code of the People's Republic of China, signs of guilt of a medical institution are fixed. These include violation of the law, administrative act, concealment of medical documents, forgery, distortion, destruction of medical documents. Article 1223 formulates a norm obliging medical organizations to compensate for the harm to the patient's health caused by the use of substandard medicines, with the possibility of further suing the manufacturer of substandard medicines. At the same time, Article 1224 of the Civil Code of the People's Republic of China defines the circumstances excluding compensation to the patient. An important aspect is reflected in Article 1227, which prohibits medical examinations that are not necessary. All this creates a clear and convenient basis for the law enforcement officer to protect the rights of consumers of medical services.
As you know, the issue of blocking users' pages by various social networks can lead to losses for them. In China, where trading using applications and websites based on the principles of social networks is widespread, this issue is extremely important. In Russia, many Internet users also profit from various platforms. It's no secret that, for example, Instagram and YouTube are used primarily for commercial purposes. At the same time, exclusively intra-platform rules determine the order of how and whom to block, which can become an instrument of anti-competitive struggle. In this regard, the provisions of Articles 1195-1197 of the Civil Code of the People's Republic of China, which are aimed at regulating relations between users of Internet resources and various Internet platforms, deserve attention and serious study. According to the content of these norms, the subject whose right has been violated may require the Internet provider to bring the offender to justice by disconnecting the connection, as well as deleting or blocking the account.
Conclusion
Thus, the Civil Code of the People's Republic of China is the most important regulatory legal act of China, which regulates a significant area of public relations. However, it can be seen that there are no sections devoted to intellectual property and private international law. The Chinese legislator left these sections outside the framework of the Civil Code. Based on the analysis of the Civil Code of the People's Republic of China, a number of conclusions can be drawn that sufficiently characterize this document.
Firstly, the history of the creation of the Civil Code of the People's Republic of China allows us to speak of it as the most important result of many years of work by Chinese lawyers to codify the civil legislation of socialist China, which fully reflects the social and economic trends prevailing in modern Chinese society.
Secondly, based on the structure of the Civil Code of the People's Republic of China, it can be argued that it is based on approaches typical of continental law, in particular German law. At the same time, the Civil Code of the People's Republic of China includes elements typical of English law, such as quasi-treaties.
Thirdly, an analysis of the section of the Civil Code of the People's Republic of China devoted to property rights showed that it is in it that the socialist character of the People's Republic of China is most manifested. At the same time, the problem of prohibiting private individuals from owning land is solved by establishing a usufruct.
Fourth, the analysis of subjects of civil law and organizational and legal forms of legal entities also showed the presence in the legislation of the People's Republic of China of a large array of norms based on the principles of Soviet law, which are combined with traditional Chinese law. A striking example of such a symbiosis is, for example, agricultural contracting farms, primary self-government organizations.
Fifth, the study of the Civil Code of the People's Republic of China, the comparative legal analysis of the Civil Code of the People's Republic of China and the Civil Code of the Russian Federation allowed us to identify a number of provisions, including those related to the digitalization of the economy, which the domestic legislator should study and consider the possibility of their application to improve the civil legislation of Russia.
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