Social Sciences in China (Chinese Edition)

No.12, 2015

 

State Policies as a Source of Civil Law

(Abstract)

 

Zhang Hong

 

State policies exert a great influence over civil justice in China. Article 6 of the General Principles of Civil Law stipulates that state policies are a source of civil law, but the path by which they enter civil justice is not a rational one. When judges make rulings on the basis of state policies, they face problems including a lack of complementary regulations, confusing rationales and lack of a clear line of reasoning. These stem from lack of clarity in definition of the scope of such policies and the way they differ from laws. Under the rules on civil adjudication, laws, legal interpretations, judicial interpretations, administrative regulations, self-government ordinances and special regulations, all of which are formulated by the National People’s Congress and its Standing Committee, are adjudication norms, while administrative rules and other regulatory documents are explanatory norms. However, all of the above are forms of expression of state policies. As a source of civil law, state policies must observe the adjudication rules of different vehicles when moving into civil justice. The Supreme People’s Court can play a role in making public policy and guiding state policies into civil adjudication through “unseen” and “open” channels. We should adhere to the foundation of the autonomy of private law, establish a mechanism for the introduction of state policies to civil adjudication, and bring state policies into civil justice through legitimate and reasonable channels. This is the way forward for the rule of law, one that will realize the state’s regulation of civil life and the integration of public and private law.