The way to codify civil law in China
The article analyzes the process of modern codification of civil law in China, provides a historical overview of the codification of civil law in China, raises the problems of private law codification and analyzes the political, economic and other sources of these problems. It is noted that in traditional China there was only criminal (public) law. Legal traditions based on the rule of criminal law lasted for more than 2,000 years, until the early years of the twentieth century. China has not embarked on the path of modernizing the legal system and codifying civil law. In 1929-1930 . The first Civil Code in the history of China was adopted, built on the model of the Swiss and German civil codifications, simultaneously reflecting the experience of the Japanese, French and Soviet codifications of civil law. After the founding of the PRC, the stage of extensive borrowing of Soviet socialist law, including civil law, began. However, attempts at codification proved unsuccessful, the reasons for which were legal nihilism and lack of necessary attention from the authorities. The transition from an administratively planned to a free market economy prompted the legislator to temporarily abandon the idea of codifying civil legislation: Instead of one codified law, it was decided to adopt several special ones. In the XXI century, a new stage of codification of civil law in China began. In 2002, the fourth draft of the Civil Code of the People's Republic of China was published, which for no apparent reason sank into oblivion. In 2014, the process of codification of civil legislation became more active, and in 2017, Part one of the future Civil Code of the People's Republic of China was adopted. In accordance with the civil law codification plan, the Civil Code of the People's Republic of China should be adopted as a whole in March 2020.
Keywords: legislation in China; civil legislation; codification; the spirit of private law; legal nihilism; legal traditions; public property.
In traditional China, there was only criminal or public law, while private law, known to Ancient Rome, was not legally fixed.
In the era of the Wei Kingdom (from 445 BC to 225 BC), the first systematization of Chinese legal documents was carried out. It was implemented by Minister Li Kui. The first code was created - "Fa Jing", consisting of 6 parts (pian): 1) theft; 2) murder; 3) detention in prison; 4) detention of criminals; 5) mixed provisions; 6) general provisions <3>. All six parts were devoted to crimes and punishments. The Code, as amended and supplemented, was applied until the last Chinese Qing Dynasty (1644-1911).
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<3> See: He Qinghua. A new study "Fa Jing" // Jurisprudence. 1998 N 2. p. 15
In ancient China, which did not know private law, civil disputes were resolved with the help of criminal punishment, and the institution of law in its original form sounded exactly like "punishment". The law established that in case of non-fulfillment of a contractual obligation, the debtor must be punished with bamboo sticks and, moreover, imprisoned for up to one and a half years. Failure to fulfill the marriage contract could result in imprisonment of the perpetrator (as a general rule, the head of the family).
Legal traditions based on the supremacy of criminal law lasted for more than 2 thousand years, until the Celestial Empire embarked on the path of modernization of the legal system in the early years of the 20th century and began the codification of civil law. In 1911, a draft Civil Code was published, which was not adopted due to the fall of the Qing Dynasty.
In 1929-1930, the first Civil Code in the history of China was adopted, consisting of 5 sections divided into 29 chapters and 1225 articles. It was built on the model of the Swiss and German civil codifications, while reflecting the experience of the Japanese, French and Soviet codifications of civil law. The Code has received a positive assessment from foreign legal scholars. However, the Code was ordered to live for a long time, since its effect on the territory of the established People's Republic of China was canceled in 1949. This Code, as amended, is currently in force in Taiwan.
After the founding of the PRC, the stage of extensive borrowing of Soviet socialist law, including civil law, began. The codification of the civil law of the People's Republic of China was carried out with the direct use of the Civil Code of the RSFSR of 1922 and 1964 and their drafts, the Foundations of the Civil legislation of the USSR and the Union Republics of 1961, as well as the drafts of the Civil Code of the USSR of 1939 - 1951 and the Foundations of the Civil legislation of the USSR and the Union Republics of 1931. <4> The first draft of the Civil Code of the People's Republic of China was prepared in 1957 The second one was in 1964. However, both attempts at codification turned out to be unsuccessful, the reasons for which were legal nihilism and lack of necessary attention from the authorities <5>.
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<4> See: Wang Zhihua. Reflections on the influence of Soviet Law on Chinese law // Bulletin of the East China University of Politics and Law. 2008. N 1. P. 95.
<5> See: Hao Techuan. The history of the codification of civil legislation in China // Legality. 2016. July 12th.
The third Plenum of the CPC Central Committee of the 11th convocation, held in 1978, opened a new era - the era of reform and openness in China. The principles of economic freedom and trade development established by this policy have exposed the practical need to regulate civil relations. The third draft of the Civil Code of the People's Republic of China, which is directly related to the policy of reform and openness, was developed in 1982. However, this draft did not happen to become a code either. The transition from an administratively planned to a free market economy was associated with complications and destabilization of the socio-economic structure. This prompted the legislator to change the strategy of civil lawmaking and temporarily abandon the idea of codifying civil legislation. It was decided to adopt, instead of one codified law, a series of special laws that could eventually be used as parts (sections) of the future code. Such laws - separate parts of the future Civil Code - include, in particular, the General Provisions of Civil Law of 1986, the Laws of the People's Republic of China "On Contracts" of 1999, "On Property Rights" of 2005, "On Tort Liability" of 2009, "On Marriage" as amended in 2001, "On Inheritance" 1985, "On Adoption" 1991. <6>
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<6> See: Yang Lixin. Actual problems of codification of civil legislation in our country. Beijing, 2018. p. 14.
With the advent of the XXI century, a new stage of codification of civil law in China began. In 2002, the fourth draft of the Civil Code of the People's Republic of China was published, which for no apparent reason sank into oblivion. In 2014, the process of codification of civil legislation began to develop by leaps and bounds and was soon crowned with the first successes. In 2017, Part one of the future Civil Code of the People's Republic of China was adopted under the title "Basic Provisions of the Civil Law of the People's Republic of China". In accordance with the civil law codification plan, the Civil Code of the People's Republic of China will be adopted as a whole in March 2020. In the absence of any "force majeure circumstances", the most recent Civil Code in the world will receive the "right to life" in a few months.
Making an excursion into the past, we note that more than 100 years have passed since the creation of the draft Civil Code of 1911 to the present day. The situation of the absence of a codified civil law in the People's Republic of China depended and depends on a number of factors, the most important of which, in my opinion, is the policy of the state.
The draft Civil Code of 1911 did not become law due to the fall of the Qing Dynasty. The first Civil Code of the Republic of China in 1929-1930 was abolished in the People's Republic of China after the overthrow of the Kuomintang government. The drafts of the Civil Code of the People's Republic of China in 1950 - 1960 were not adopted due to the well-known political state of the country and the legal nihilism of its leadership, approved by the supremacy of the Communist Party of China. The lack of economic and social incentives also had an impact on the private law codification of 1982 and 2002. And only in October 2014, when the resolution of the IV Plenum of the CPC Central Committee of the 18th convocation was adopted, which included a plan for the codification of civil law of the People's Republic of China, the situation radically changed. According to many scientists, the leader of the ruling party of China decided to codify civil legislation, considering that it has a special historical significance. Although "the law is an expression of the general will," as stated in Article 6 of the French Declaration of Human and Civil Rights, at the same time, the will of some great public figure at some point can have a decisive influence on the codification of legislation. An example of a statesman's direct influence on the law-making process is the French Civil Code, which was adopted in 1804 under the patronage of Emperor Napoleon.
The second factor influencing the codification of civil law is the existing economic structure in the country, which is directly related to the policy being pursued. In socialism, such a way of life is a planned administrative economy, when the main means of production belong to the state and collectives of people, and individuals can only own things for personal consumption. The turnover of goods between individuals was strictly prohibited in the PRC at one time, and making transactions could entail criminal liability. Despite the introduction of a policy of reform and openness, China's economy is still based on public ownership. The latter circumstance has a huge impact on the absence of a Civil Code in the PRC for many years.
Further. The Civil Code is the law on human and civil rights. In Russia, the Civil Code is called the "economic constitution". In China, it is called the Human Rights Act or the "basic law of society" <7>. Everyone knows that the basic human and civil rights are regulated by the Constitution. The realization of these rights is the task of civil legislation. In modern China, the protection of human rights is a "sensitive issue" and its discussion is somewhat limited. The existing "line" of private rights cannot be called rich. For example, there is no right of private ownership of land, the land belongs, if not to the state, then to some collective, but not to citizens and legal entities. The right of ownership of an apartment is limited to a 70-year period, which is the average life expectancy of a person in the world (71.6 years) <8>.
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<7> Xie Hongfei. The creation of the "Basic Law" of society in China - the course of codification of civil law // National legality. 2017. N 10. P. 7.
<8> See: Gong Chunzi. On the average life expectancy of men and women // Chinese statistics. 2019. p. 61.
Registration is of great importance in China. The status of a citizen of the People's Republic of China who has a residence permit in rural areas is different from the status of an urban resident. Even registration in one city is different from registration in another city. For example, a person lives and works in Beijing, is registered in another city or village, he cannot enjoy many of the benefits provided to the Pekingese. His children repeat his registration and cannot study at a public school in Beijing. Of course, there are private schools, but not everyone can afford them, and the quality of education in such schools may leave much to be desired. The amount of compensation for damage caused to life or health also depends on the registration of the victim.
Based on the above, we can conclude that there is no spirit of private law in China <9>. The current Constitution of the People's Republic of China stipulates that state property is sacred and inviolable, and in relation to private property it says that it is only protected by law. The General Provisions of the Civil Law of the People's Republic of China in 1986 contain similar norms. Thus, the Chinese socialist system is based on public ownership. Other forms of ownership play a secondary role in the economy.
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<9> Yin Tian. Obstacles to the codification of civil legislation in China and their overcoming // Northern Jurisprudence. 2015. N 4. P. 38.
Despite the presence of factors affecting the codification of civil legislation and negative reviews, it is not long to wait for the adoption of the Civil Code of the People's Republic of China. Many lawyers in China view the current codification of civil law as the fulfilled hope of Chinese civilists of several generations <10>. In a few months, such a hope will come true and attract the attention of lawyers around the world. Nevertheless, many Chinese lawyers do not expect a successful result of the codification under consideration.
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<10> Shen Huiwen. Codification of civil legislation - following the aspirations of China: an interview with Liang Huixing, a member of the Academic Council at the Academy of Social Sciences of China // National Legality. 2016. N 3. P. 34.
In accordance with the codification plan drawn up by the working group on the codification of Chinese civil law under the Standing Committee of the National People's Congress, the future Civil Code will include 7 parts: "Basic provisions of civil law", "Property Rights", "Contracts", "Marriage", "Inheritance", "Personal rights", "Tort liability". The future Civil Code of the People's Republic of China will become the object of close attention of the legal community. And for comparative lawyers from Russia and China, there is plenty of research on the common features and differences of the civil codes of both states.
