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CPC history key to understanding China’s Civil Code

SHAO LIUYI | 2021-07-01 | Hits:
(Chinese Social Sciences Today)

A few copies of The Civil Code of the People’s Republic of China exhibited in a campaign to commemorate the 100th anniversary of the founding of the Communist Party of China at Beijing Books Building in June 2021 Photo: CFP


The Civil Code of the People’s Republic of China took effect on Jan. 1, 2021, ushering in an era of Civil Code studies in the field of civil law. The Civil Code compilation is a milestone in China’s rule of law process. Prior to this compilation, the PRC had actually explored compiling the Civil Code three times since its founding in 1949. To understand the compilation process and spirit of the code, it is essential to look back on the 100-year history of the CPC as well as the decades-long course the PRC has covered. 

In the 20th century, fulfilling the revolution’s tasks by liberating people at the bottom of society and rallying revolutionary forces was high on the modernization agenda. Amid social revolution, the PRC’s political and legal system was established on the basis of a differentiation of identities, which was, however, contradictory to the basic assumption of formal equality in classical civil law theory. In addition to the economic system, the previous three compilations of the Civil Code all failed. 
 
As the socialist system with Chinese characteristics matures, China is more capable of incorporating civil law traditions into the new era’s political and legal system. The formulation of the Civil Code marks a significant step in the modernization of state governance. It will upgrade narrative-based Chinese stories into normative Chinese experiences. The socialist nature is the distinctive spiritual feature of China’s Civil Code and the real contribution that the code might make to the world. 
 
Compilation process
In the 20th century, China was faced with complicated domestic and international situations, which required the CPC to build a modern nation by mobilizing the people under the guidance of socialist thoughts. This also brought the socialist political and legal tradition into being. New China’s rule of law was deeply influenced by the Soviet Union. Revolution was not only the state’s theme for the first three decades following the PRC’s founding, but also set the tone for legal studies in the country. 
 
The theory and practice of the land law and the marriage law in the early days of New China broke fundamental assumptions of formal equality, as differentiation was well implemented in the socialist rule of law. For example, the people were categorized into different classes with different rights, in a bid to garner support from the majority. 
 
Civil subjects in civil law theory include natural persons, legal persons, and non-legal organizations. Private law theory fundamentally assumes a homogenous understanding of “person.” However, in the socialist political and legal context, the people were divided into different classes. 
 
The socialist system instituted by New China was unlikely to approve the formal equality principle, and the political principle established by socialism was grounded in the line of demarcation between “the enemy and ourselves.” [According to late Chairman Mao Zedong, at the present stage, the period of building socialism, the classes, strata and social groups which favor, support and work for the cause of socialist construction all come within the category of the people (ourselves), while the social forces and groups which resist the socialist revolution and are hostile to or sabotage socialist construction are all enemies of the people.] Only the people in the category of “ourselves” were entitled to a series of rights. 
 
Therefore it was difficult to directly transplant individualism and formalism from basic civil law theory into classical socialism. This made it impractical for New China to adopt an individual-based and formally equal Civil Code in the short term, hence the previous failures of the Civil Code compilation. 
 
After reform and opening up began, tensions between the different traditions listed above didn’t disappear. The socialist political and legal tradition, the liberalist rule of law tradition, and Chinese ritual conventions intertwined in civil law theories. The entanglement of these traditions invited disputes on the draft of the Property Law in 2006. [There was a strong view that state-owned property should be given precedence over private property, so worries arose that the draft, the country’s first specific law to protect private ownership, could undermine the legal foundation of China’s socialist system.] 
 
The success of the most recent Civil Code compilation largely resulted from the development of the rule of law discourse system with Chinese characteristics, which boosted China’s confidence in integrating different resources into the code. 
 
The fourth plenum of the 18th CPC Central Committee in October 2014 clarified the goal of compiling the Civil Code, pointing to the direction of China’s civil legislation. The rule of law defined at this meeting was no longer the court-centered judicial philosophy and practice of the Western style. Instead, a rule of law system with state governance at the core and a new pattern which comprehensively promotes law-based governance were created. 
 
The overarching goal of law-based governance indicates that the socialist legal system with Chinese characteristics is not entirely a state law. Basic elements that fit the socialist rule of law nation should be included. The overall framework of legislation, enforcement, judicature, and obedience to law encompasses the state, the government, society, and citizens with the ultimate aim to modernize China’s system and capacity for governance. 
 
Spiritual features
Chinese President Xi Jinping, also general secretary of the CPC Central Committee, defined the Civil Code’s features as reflecting China’s socialist nature, conforming to the people’s interests and expectations, and keeping up with practice and the times. However, the mainstream civil law community mainly focuses on the first two features. 
 
Some civil law scholars recently shed light on evolution from the civil codes of France and Germany in the 19th century to China’s Civil Code in the 21st century, and then interpreted the Chinese code’s features from the perspective of safeguarding human rights and developing new technologies. 
 
In fact, rights were the fundamental civil code theme in the 19th century. China’s Civil Code was not the first to value personality rights. For example, the Swiss civil code, laid down in 1907, superseded the General Provisions in favor of Human Law as the first part. 
 
More importantly, in the evolution of civil codes from the 19th to 21st century, the 20th century was missing. The disregard of 20th-century China not only turns a blind eye to revolutionary traditions of the Mao Zedong era, but also biasedly construes reform traditions of the Deng Xiaoping age, and lacks theoretical self-consciousness of the new era. 
 
If China’s Civil Code has epochal significance and global influence, it is exactly because it goes beyond liberalism and individualism which were upheld in the 19th century, and takes into account political practices of 20th-century China. 
 
In the narrative of China’s modern history, the 20th century cannot be understood as a continuation of the dynastic, imperial, or Confucian chronicle. The core theme of 20th-century China was revolution. The CPC emancipated the oppressed masses of lower classes through gender, family, and land revolutions, gradually laying the social and economic groundwork for the new regime. New China was striving for state dependence, national liberation, and democratic freedom, which Chinese people yearned for since 1840. 
 
Guided by the original aspiration and mission to seek happiness for Chinese people and rejuvenate the Chinese nation, the CPC Central Committee with Comrade Xi Jinping at the core creatively linked socialist rule of law traditions with liberalist rule of law traditions. As such, it resolved the tension of contradicting values in previous compilations of the Civil Code, not only providing inspiration for understanding the code’s epochal contribution, but also contributing Chinese proposals to global governance. 
 
The Civil Code of the new era signifies the establishment of liberalist private law orders, and symbolizes the integration and reshaping of multiple values. Take personality rights as an example, the protection of personality rights in classical civil law theory is primarily about formal equality. As the most important tool that prioritizes private rights, civil law has a tendency to safeguard vested interests. From socialist angles, protecting underprivileged groups is naturally legitimate. Greater attention to the lower strata of society is not only one of the basic guidelines of lawmaking in China, but also the core concern of socialism with Chinese characteristics.  
 
Therefore, China’s Civil Code needs to respect individual creation, but it cannot rigidify the law and interest patterns behind it, which necessitates socialist equality in future applications and interpretations of the Civil Code. 
 
The report to the 19th CPC National Congress pointed out that the principal contradiction facing Chinese society has evolved into one between unbalanced and inadequate development, and the people’s ever-growing needs for a better life. This calls for more attention to social equality, as well as the full protection of disadvantaged social groups that have little access to the law, which should be the aim of civil legislation and practices.
 
As the CPC has experienced 100 years of history, emphasis on the Civil Code’s socialist nature is of immediate realistic significance. In current state governance, it will help carry forward socialist labor values that amplify the importance of labor to wealth creation, and prevent large enterprises from growing into “capital monsters” by taking advantage of respect for private law and property rights. This can well explain the socialist soil that China’s Civil Code is rooted in. 
 
Shao Liuyi is an assistant professor from the Law School at Minzu University of China. 
 
 
 
Edited by CHEN MIRONG