999

The Latest Developments in the Codification of Chinese Civil Law

Zhang Lihong*

I. INTRODUCTION: BRIEF HISTORY AND CURRENT SITUATION

OF CHINESE CIVIL LAW .............................................................. 1000 A. The GPCL ......................................................................... 1002 B. Special Civil and Commercial Laws, and the

Provisions Stipulated by Public Laws (Mainly Administrative Laws), Governing Civil or Commercial Relationships ............................................... 1002

C. Judicial Interpretations ..................................................... 1004 II. THE LATEST DEVELOPMENTS IN THE CODIFICATION OF

CHINESE CIVIL LAW ................................................................... 1006 A. Debates on the Structure of China’s Future Civil

Code .................................................................................. 1008 B. 2002 Civil Code Draft ...................................................... 1010 C. Debate on the 2002 Civil Code Draft:

Anticodification and Decodification Ideas in China ...... 1015 D. 2007 Real Right Law ....................................................... 1018 E. Academic Criticism of the 2007 Real Right Law ........... 1020

1. On the Protection of State Property ........................ 1020 2. On the Possibility of Marketing the Right To

Use Rural Land for Housing ................................... 1021 3. On the Usucapion .................................................... 1022 4. On How To Define the Public Interest .................... 1022 5. On the Gratuitous Character of the Return of a

Lost Thing ................................................................ 1023 6. On the Concept of Real Right and the Nature

of Real Right Law .................................................... 1023 F. The Latest Developments in the Drafting of China’s

Tort Law ............................................................................ 1024

* © 2009 Zhang Lihong. Professor of Law at East China University of Political Science and Law (ECUPL, Shanghai, China) and Director of the Roman Law and European Law Center at ECUPL. Ph.D. in Civil Law and Roman Law from the University of Rome “La Sapienza” (Italy). E-mail:lihong111@gmail.com.

1000 TULANE LAW REVIEW [Vol. 83:999

G. The Latest Version of the Tort Law Draft: Content and Characteristics ............................................................ 1026

H. The Current Debates on Tort Law ................................... 1030 1. On the Name and the Nature of Tort Law .............. 1030 2. On How To Provide the General Clauses of

Tort Law ................................................................... 1030 3. On the Special Torts and Their Types...................... 1033

a. Tort Committed by the State ......................1033 b. Tort Resulting from Accomplishment

of Friendship ...............................................1033 c. Tort Resulting from a Labor Accident .......1034 d. Tort of Interference with Prospective

Contractual Relations .................................1034 e. Tort Committed by the Professional ..........1035

4. On Compensation for Damages .............................. 1035 5. On the Methods of Discharge of Tort Liability ...... 1037

III. CONCLUSION .............................................................................. 1038

I. INTRODUCTION: BRIEF HISTORY AND CURRENT SITUATION OF

CHINESE CIVIL LAW

Traditional Chinese civil law remained in the form of customary law until the promulgation of the Civil Code of the Republic of China in 1929, which was modeled essentially upon the Bürgerliches Gesetzbuch (BGB) (German Civil Code) and the 1911 Swiss Law of Obligations.1 After the founding of the People’s Republic of China (PRC) in 1949, this first civil code in Chinese history was abolished in mainland China, and its validity remained only in Taiwan.2

1. See THE CIVIL CODE OF THE REPUBLIC OF CHINA (Yukon Chang, Ching-Lin Hsia & James L.E. Chow trans., University Publications of America, Inc., 1976) (1930); R.C.W. Sheng, Civil Code of the Republic of China, 4 CHINA L. REV. 69 (Oceana Pubs. 1975) (1929); see also THE SWISS FEDERAL CODE OF OBLIGATIONS (Simon L. Goren trans., 1987) (1911); THE GERMAN CIVIL CODE (Simon L. Goren trans., 1989). 2. For a detailed analysis on the history of codification of the Chinese civil law, see JEROME ALAN COHEN, CONTEMPORARY CHINESE LAW: RESEARCH PROBLEMS AND

PERSPECTIVES (1970); Ling Bing, Civil Law, in INTRODUCTION TO CHINESE LAW 170 (Wang Chengguang & Zhang Xiaochun eds., 1997); CIVIL LAW IN QING AND REPUBLICAN CHINA (Kathryn Bernhardt & Philip C.C. Huang eds., 1994); RENÉ DAVID & CAMILLE JAUFFRET-SPINOSI, LES GRANDS SYSTÈMES DE DROIT CONTEMPORAINS (8th ed. 1982); Edward J. Epstein, Codification of Civil Law in the People’s Republic of China: Form and Substance in the Reception of Concepts and Elements of Western Private Law, 32 UNIV. BRIT. COLUM. L. REV. 153, 162 (1998). See also Liang Zhiping, Law, Politics and Social Change: Codification in China Since 1902, in CODICI: UNA RIFLESSIONE DI FINE MILLENNIO 407 (Paolo Cappellini & Bernardo Sordi eds., 2002); Wang Liming, Zhong Guo Min Fa Dian Zhi Ding De Hui Gu Yu

2009] CHINESE CIVIL LAW 1001 Before its opening to the world in 1979, China twice attempted to draft a civil code, in 1954 and 1962.3 Due to the increase in the so-called “nihilism of law” school of thought and as a result of some political movements (the so-called “Against the Right” and “Three Jumps” movements from 1956 to 1960, as well as the Cultural Revolution from 1965 to 1975), China failed to codify its civil law. Shortly after Chinese political leader Deng Xiaoping’s visit to the United States in 1978, China began its legislative reform, together with its well-known economic reform, by enacting some special civil and commercial laws.4 In 1982, after the success of the economic reform, China’s legislature again planned to draft a civil code. In that period, Russian doctrine dominated the whole of Chinese civil law. The Soviet theory of economic law provoked heavy debate on the different functions of civil and economic law in China.5 Given such debate and Zhan Wang [Review and Perspectives on the Codification of the Chinese Civil Code], 2008 FA XUE LUN TAN [LEGAL F.] iss. 3, at 5; Wang Zhenmin, The Roman Law Tradition and Its Future Development in China, 1 FRONTIERS L. CHINA 72 (2006); Zhang Lihong, The Codification of Civil Law in China: History, Current Situation and Prospective, 7/8 STUDIUM

IURIS 896-908 (2004). 3. The first attempt to draft a civil code in the PRC began in 1954 and ended in 1956 with a working paper modeled upon the Russian Civil Code, providing 500 articles in four parts: (1) General Provisions, (2) Ownership, (3) Obligations, and (4) Successions. In 1962, the PRC began drafting a civil code for the second time. This draft was completed in 1964 and is composed of three parts with 252 articles: (1) General Provisions, (2) Ownership, and (3) Transmission of Properties. In the 1964 draft, the Chinese legislature did not take into consideration any foreign codification experience. As a result, the draft is practically devoid of legal terms and is instead filled with political slogans. 4. See Law on Chinese-Foreign Equity Joint Ventures (promulgated as amended by the Nat’l People’s Cong., Mar. 15, 2001, effective July 1, 1979), LAWINFOCHINA (last visited Jan. 30, 2009); Marriage Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Apr. 28, 2001, effective Jan. 1, 1980) LAWINFOCHINA (last visited Jan. 30, 2009); Economic Contract Law (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 13, 1981, effective July 1, 1982) LAWINFOCHINA (last visited Jan. 30, 2009); Trademark Law (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 23, 1982, effective Mar. 3, 1983) LAWINFOCHINA (last visited Jan. 30, 2009); Patent Law (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 12, 1984, effective Apr. 1, 1985) LAWINFOCHINA (last visited Jan. 30, 2009); Law of Succession (promulgated by the Nat’l People’s Cong., Apr. 10, 1985, effective Oct. 1, 1985) LAWINFOCHINA (last visited Jan. 30, 2009); Law on Economic Contracts Involving Foreign Interest (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 21, 1985, effective July 1, 1985) LAWINFOCHINA (last visited Jan. 30, 2009). 5. Under the strong influence of the famous Pashukanis’s theory of economic law, according to which all economic relationships in a socialist country shall be governed by economic law, at the beginning of 1980, China’s contract law was denominated “Economic Law” and was divided into two parts: 1981 Economic Contract Law and 1985 Law on Economic Contracts Involving Foreign Interest. In opposing this theory of economic law, most civil law scholars alleged that the economic relationship between subjects of equal status should be governed by civil law, qualifying economic law as law governing only economic management by government and

1002 TULANE LAW REVIEW [Vol. 83:999 the pragmatic policy of Chinese politicians, the Chinese legislature gave up on the codification of civil law and enacted only the General Principles of the Civil Law (GPCL) in 1986. Though it was not a civil code, the GPCL, with its nine parts featuring 156 articles, provided the most important civil law principles and institutions. The GPCL adopted many legal concepts and institutions of Roman Law and continental law, such as legal person, Rechtsgeschäft (juristic act), limitation of actions, civil liability, and so on.6 As in Italy, civil law and commercial law are unified legislatively in China. Thus, the GPCL is also applicable in the field of commercial law, except as otherwise stipulated by special commercial law. In terms of positive law, besides customary law, the current civil (and commercial) law norms in China are composed essentially of three parts: the GPCL, special civil and commercial laws, and judicial interpretations.

A. The GPCL

The GPCL is the origin of China’s civil legislation and is the only fundamental civil act of the National People’s Congress.7 It is the supreme statute in civil law, and any special civil or commercial law provisions that conflict with the GPCL are invalid. The GPCL constitutes an interpretive framework of China’s entire civil law.

B. Special Civil and Commercial Laws, and the Provisions Stipulated by Public Laws (Mainly Administrative Laws), Governing Civil or Commercial Relationships

After the promulgation of the GPCL in 1986, and in particular, after China decided to abandon the planned economy and build a market economy in 1992, China’s legislature enacted many special the economic relationship between the state and enterprises. See Epstein, supra note 2, at 165. 6. General Principles of the Civil Law (promulgated by the Nat’l People’s Cong., Apr. 12, 1986, effective Jan. 1, 1987), LAWINFOCHINA (last visited Jan. 30, 2009). The GPCL resolves the conflict between civil law and economic law by accepting the above-stated thought of the Chinese civil law scholars on the jurisdiction of civil law and contains many Chinese-styled and socialist ideas. For example, article 7 says that “[c]ivil activities shall have respect for social ethics and shall not harm the public interest, undermine state economic plans or disrupt social economic order.” Article 6 qualifies state policies as one source of civil law. Article 134 includes the elimination of ill effects, the rehabilitation of reputation, and the extension of apology as methods of bearing civil liability. 7. In Chinese law, the term “fundamental act” refers to a law, except constitutional law, adopted by the plenary meeting of National People’s Congress, whose amendment is also subject to the approval of such plenary meeting.

2009] CHINESE CIVIL LAW 1003 civil and commercial laws instead of drafting a civil code. The most important special civil and commercial laws promulgated and/or modified from 1986 until now are: the 1986 Law on Enterprise Bankruptcy (modified in 2006),8 the 1990 Copyright Law (modified in 2001),9 the 1991 Adoption Law,10 the 1993 Company Law (modified in 1999, 2004, and 2005),11 the 1995 Negotiable Instruments Law (modified in 2004),12 the 1995 Guaranty Law,13 the 1995 Insurance Law (modified in 2009),14 the 1996 Auction Law (modified in 2004),15 the 1997 Partnership Business Law (modified in 2006),16 the 1998 Securities Law (modified in 2005),17 the 1999 Contract Law,18 the 1999 Law on Sole Proprietorship Enterprises,19 the 2001 Trust Law,20 the

8. Law on Enterprise Bankruptcy (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 27, 2006, effective June 1, 2007), LAWINFOCHINA (last visited Jan. 30, 2009). 9. Copyright Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Oct. 27, 2001, effective June 1, 1991), LAWINFOCHINA (last visited Jan. 30, 2009). 10. Adoption Law (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 1991, effective Apr. 1, 1992, revised Nov. 4, 1998), LAWINFOCHINA (last visited Jan. 30, 2009). 11. Company Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Oct. 27, 2005, effective Jan. 1, 2006), LAWINFOCHINA (last visited Jan. 30, 2009). 12. Negotiable Instruments Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., revised Aug. 28, 2004, effective Jan. 1, 1996), LAWINFOCHINA (last visited Jan. 30, 2009). 13. Guaranty Law (promulgated by the Standing Comm. Nat’l People’s Cong., June 30, 1995, effective Oct. 1, 1995), LAWINFOCHINA (last visited Jan. 30, 2009). 14. Insurance Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Feb. 28, 2009, effective Oct. 1, 1995, LAWINFOCHINA (last visited Mar. 30, 2009). 15. Auction Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Aug. 28, 2004, effective Jan. 1, 1997, revised Aug. 28, 2004), LAWINFOCHINA (last visited Jan. 30, 2009). 16. Partnership Enterprise Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Aug. 27, 2006, effective June 1, 2007), LAWINFOCHINA (last visited Jan. 30, 2009). 17. Securities Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Oct. 27, 2005, effective July 1, 1999), LAWINFOCHINA (last visited Jan. 30, 2009). 18. Contract Law (promulgated by the Nat’l People’s Cong., Mar. 15, 1999, effective Oct. 1, 1999), LAWINFOCHINA (last visited Jan. 30, 2009). The promulgation of this unified law of contracts put an end to the preexisting separation of the Economic Contract Law, the Law on Economic Contracts Involving Foreign Interest, and the Law on Technology Contracts (promulgated by the Standing Comm. Nat’l People’s Cong., June 23, 1987, effective Nov. 1, 1987), LAWINFOCHINA (last visited Jan. 30, 2009). 19. Law on Individual Proprietorship Enterprises (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 30, 1999, effective Jan. 1, 2000), LAWINFOCHINA (last visited Jan. 30, 2009). 20. Trust Law (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 28, 2001, effective Oct. 1, 2001), LAWINFOCHINA (last visited Jan. 30, 2009).

1004 TULANE LAW REVIEW [Vol. 83:999 1980 Law of Marriage (modified in 2001),21 the 2007 Labor Contract Law,22 and the 2007 Real Right Law.23 Besides special civil and commercial laws, China’s public law—in particular, administrative law and government regulations—also governs the civil and commercial relationship. For example, except for the 1995 Guaranty Law24 and the 2007 Real Right Law,25 many administrative acts or regulations also govern the property relationship, such as the 1986 Land Administration Law (modified in 1988, 1998, and 2004),26 the 1994 Law on Urban Real Estate Administration (modified in 2007),27 the 2003 Law on the Contracting of Rural Land,28 and the 2007 Measures for Chattel Mortgage Registration29 issued by State Administration for Industry and Commerce.

C. Judicial Interpretations

There are two kinds of judicial interpretations made by China’s judicial bodies. The first kind consists of the Supreme Court’s replies to a lower court with regard to a concrete case or the Supreme Court’s

21. Marriage Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Apr. 28, 2001, effective Jan. 1, 1981), LAWINFOCHINA (last visited Jan. 30, 2009). 22. Labor Contract Law (promulgated by the Standing Comm. Nat’l People’s Cong., June 29, 2007, effective Jan. 1, 2008), LAWINFOCHINA (last visited Jan. 30, 2009). 23. Real Right Law (promulgated by the Nat’l People’s Cong., Mar. 16, 2007, effective Oct. 1, 2007), LAWINFOCHINA (last visited Jan. 30, 2009). Even if the 2007 Real Right Law regulates in detail the security rights for obligations (from articles 170-240), its promulgation does not abrogate the 1995 Guaranty Law. According to article 178 of the 2007 Real Right Law, except those in contrast to it, all provisions in the 1995 Guaranty Law are still valid. However, so far, the legislature has not clarified in concrete terms which parts of the 1995 Guaranty Law are in contrast to the 2007 Real Right Law and are therefore invalid. To ensure the correct application of these two laws, judges still need the related judicial interpretations issued by the Supreme Court. 24. Guaranty Law (promulgated by the Standing Comm. Nat’l People’s Cong., June 30, 1995, effective Oct. 1, 1995), LAWINFOCHINA (last visited Jan. 30, 2009). 25. Real Right Law (promulgated by Nat’l People's Cong., Mar. 16, 2007, effective Oct. 1, 2007), LAWINFOCHINA (last visited Jan. 30, 2009). 26. Land Administration Law (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 29, 1998, effective Jan. 1, 1999, amended Aug. 28, 2004), LAWINFOCHINA (last visited Jan. 30, 2009). 27. Law on Urban Real Estate Administration (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 30, 2007, effective Jan. 1, 1995), LAWINFOCHINA (last visited Jan. 30, 2009). 28. Law on the Contracting of Rural Land (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 29, 2002, effective Mar. 1, 2003), LAWINFOCHINA (last visited Jan. 30, 2009). 29. Measures for Chattel Mortgage Registration (promulgated by State Admin. for Indus. & Commerce, Oct. 17, 2007, effective Oct. 17, 2007), LAWINFOCHINA (last visited Jan. 30, 2009).

2009] CHINESE CIVIL LAW 1005 directive opinions (or announcements) on a concrete problem whose solution is unclear or not provided by law.30 For example, even though China’s tort law is still being drafted, in recent years the Supreme Court has issued some important judicial interpretations on how to deal with tort cases, such as the Interpretation of the Supreme People’s Court on Several Issues about the Trial of Cases Concerning the Right of Reputation, the Interpretation of the Supreme People’s Court on Problems Regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts, and the Interpretation of the Supreme People’s Court of Some Issues Concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury.31 The second kind of judicial interpretation aims at establishing regulations for the implementation of an existing law to make it applicable to concrete cases, because many provisions of China’s laws 30. See, e.g., Official Reply of the Supreme People’s Court on Whether the Civil Liabilities Shall Be Borne for the Infringement upon a Citizen’s Basic Right of Receiving Education Which Is Under the Protection of the Constitution by Means of Infringing upon His/Her Right of Personal Name (July 24, 2001), LAWINFOCHINA (last visited Jan. 30, 2009). This is the first time that the Supreme Court cited to the PRC’s Constitution to argue the infringement of civil rights. The case concerns the loss of opportunity to receive education at Jining Business School in Shandong Province for Ms. Qi Yuling, a daughter of a farmer. After receiving a notice of Ms. Qi Yuling’s admission to study at the said business school, Mr. Cheng Kezheng, the head of Ms. Qi Yuling’s village, did not deliver the notice to her, but instead had his daughter study at the business school using the name of the daughter of the farmer. For this case, upon the request of the High Court of Shandong Province, the Supreme Court issued the reply and held that the conduct of the village head, his daughter, the high school, and the business school violated a citizen’s right of receiving an education, which is a fundamental right protected by PRC’s constitution. However, the Supreme Court suddenly revoked this reply on December 18, 2008, without any motivation. Such a decision by the Supreme Court provoked many debates among law experts. Some scholars argue that the revocation of this reply is correct because the PRC’s Constitution does not allow the court to cite its articles directly to make a decision. In contrast, others believe this decision serves as an error index for the Chinese ongoing judicial reform. For the details on this discussion, see Han Dayuan, Yi Xian Fa Di Yao Er Liu Tiao Wei Ji Chu Xun Qiu Xian Fa Shi Yong De Gong Shi [Convergence on the Condition of Application of Constitutional Law on the basis of Article 126 of PRC’s Constitution], 2009 FA XUE YUE KAN [LEGAL SCI. MONTHLY] iss. 3, at 4; Dong Maoyun, Cong Fei Zhi Qi An “Pi Fu” Kan Si Fa Gai Ge De Fang Xiang [The Direction of Judicial Reform Viewed from the Revocation of the Reply “Qi Yuling” Case], 2009 FA XUE YUE KAN [LEGAL SCI. MONTHLY] iss. 3, at 36. 31. Interpretation of the Supreme People’s Court on Several Issues About the Trial of Cases Concerning the Right of Reputation (July 14, 1998), LAWINFOCHINA (last visited Jan. 30, 2009); Interpretation of the Supreme People’s Court on Problems Regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts (Mar. 8, 2001), LAWINFOCHINA (last visited Jan. 30, 2009); Interpretation of the Supreme People’s Court of Some Issues Concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury (Dec. 26, 2003), LAWINFOCHINA (last visited Jan. 30, 2009).

1006 TULANE LAW REVIEW [Vol. 83:999 are abstract and produce different interpretations in legal practice. These judicial interpretations provide systematic comments on a law, sometimes almost article for article. For example, the GPCL has only 156 articles, but its interpretation made by the Supreme Court on January 26, 1988, consists of more than 200 comments.32 In a certain sense, the Supreme Court’s systematic comments on a law and its directive opinions related to general legal solutions constitute the deformed exercise of legislative power—a power not granted to such a judicial body under China’s constitutional law. Today, even in the face of criticism from the legislative body and scholars, the Supreme Court continues to issue many judicial interpre-tations. So far, China has no independent body, like a constitutional court, to ensure the constitutional legitimacy of laws and judicial interpretations. Consequently, conflict, and even contradiction, among Chinese laws and their related regulations or judicial interpretations is a frequent occurrence. Such conflicts serve as serious obstacles to the realization of the rule of law in China. Putting aside their constitutionality, these judicial interpretations clarify the meaning of the provisions stipulated by law and guide the judges and other legal operators to implement the civil law efficiently in China for the purpose of resolving concrete legal problems. Any lawyer handling a concrete civil case in China must consult the Supreme Court’s interpretations because the Court bases its interpretations on practical experience as well as the advice provided by legal scholars. In fact, these interpretations become stare decisis, and in this sense, China’s civil law is similar to case law.

II. THE LATEST DEVELOPMENTS IN THE CODIFICATION OF CHINESE

CIVIL LAW

China is currently drafting a civil code, but this codification project started in 1998. For the purpose of harmonizing the existing

32. This kind of judicial interpretation concerns not only GPCL but also the majority of some important special civil laws, such as the 1995 Guaranty Law, 2001 Marriage Law, and 1999 Contract Law. See Interpretation of the Supreme People’s Court on the Application of Guaranty Law (Sept. 29, 2000), discussed at http://english.peopledaily.com.cn/english/ 200012/14/eng20001214_57828.html (last visited Jan. 30, 2009); Interpretation of the Supreme People’s Court on Several Issues Concerning Application of the (PRC Contract Law) Interpretation (1) (Dec. 29, 1999), available at http://www.chinalawandpractice. com/Article/1694665/Channel/9929/Supreme-Peoples-Court-Several-Issues-Concerning-Application-of-the-PRC-Contract-LawInterpretation-1.html (last visited Jan. 30, 2009); Interpretation No. I of the Supreme People’s Court on Several Issues in the Application of Marriage Law (Dec. 25, 2001), LAWINFOCHINA (last visited Jan. 30, 2009).

2009] CHINESE CIVIL LAW 1007 civil laws and their interpretations, as well as guaranteeing their correct and efficient application, the Standing Committee of the National People’s Congress decided in 1998 to adopt three steps to codify the Chinese civil law by 2010. First, it enacted and modified some of the most important special civil laws in order to create unified rules on market trade and to protect property and personal rights. The legislature set the following agenda regarding the codification of civil law: unification of the laws of contract (namely, the 1981 Economic Contract Law,33 the 1985 Law on Economic Contracts Involving Foreign Interest,34 and the 1987 Law on Technology Contracts);35 modification of the 1980 Marriage Law;36 and drafting and promulgation of a Real Right Law, Tort Law (if necessary), Law of Personality Rights, and a unified Law of Intellectual Property. Second, the Congress decided to draft the general part of the Chinese civil code on the basis of the GPCL. Finally, it chose to complete the drafting of the Chinese civil code by combining systematically all the enacted special civil laws with the general part of the civil code. Even if it seems impossible to realize this codification on schedule with less than two years left until the end of 2010, the ongoing codification of the Chinese civil law has already achieved some significant results: the unified Contract Law37 was enacted in 1999, the 1980 Marriage Law38 was modified in 2001, a draft of the civil code was finalized and presented to the National People’s Congress in 2002, and the Real Right Law was promulgated in 2007. Currently, China is drafting its Tort Law and plans to promulgate it by 2010. The latest developments in the codification of the Chinese civil law consist of the 2007 Real Right Law and the current drafting of the Tort Law.

33. Economic Contract Law (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 13, 1981, effective July 1, 1982), LAWINFOCHINA (last visited Jan. 30, 2009). 34. Law on Economic Contracts Involving Foreign Interest (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 21, 1985, effective July 1, 1985), LAWINFOCHINA (last visited Jan. 30, 2009). 35. Law on Technology Contracts (promulgated by the Standing Comm. Nat’l People’s Cong., June 23, 1987, effective Nov. 1, 1987), LAWINFOCHINA (last visited Jan. 30, 2009). 36. Marriage Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Apr. 28, 2001, effective Jan. 1, 1981), LAWINFOCHINA (last visited Jan. 30, 2009). 37. Contract Law (promulgated by the Nat’l People’s Cong., Mar. 15, 1999, effective Oct. 1, 1999), LAWINFOCHINA (last visited Jan. 30, 2009). 38. Marriage Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Apr. 28, 2001, effective Jan. 1, 1981), LAWINFOCHINA (last visited Jan. 30, 2009).

1008 TULANE LAW REVIEW [Vol. 83:999 Nevertheless, before discussing the 2007 Real Right Law and the current situation regarding the drafting of the Tort Law, I must briefly describe the 2002 Civil Code Draft and related debates because it is the fundamental working paper for all further codifications in China after 2002.

A. Debates on the Structure of China’s Future Civil Code

At the beginning of the twenty-first century, China’s socioeconomic development, the deepening of reform, and the opening-up of the country had laid a solid social foundation for the civil code, and China’s legislature planned to complete the drafting of the civil code. Since 2000, the debates on the structure of China’s civil code have constituted a central topic of research by civil law scholars. Professor Jiang Ping, one of the most famous legal scholars in China, asserts that the traditional continental civil code is too rigid to satisfy the developmental needs of modern society, and consequently, the future Chinese civil code must be more elastic in order to realize the advantages of the common law.39 Due to the complexity of the legal relationships that today’s civil law will govern, it would be impossible to regulate all of them by a civil code. Therefore, the future civil code should be a small code governing the most important principles and civil institutions in an abstract way, and under this civil code with abstract provisions there would be many special civil laws and juridical interpretations. This approach to the codification is considered a pragmatic way of codifying the Chinese civil code.40 However, this idea is strongly opposed by another prominent professor of civil law, Professor Liang Huixing. In Liang’s opinion, the future civil code should adopt the BGB’s structure and set out

39. Jiang Ping, Zhong Guo Min Fa Dian Zhi Ding De Hong Guan Si Kao [General Reflections on the Drafting of the Chinese Civil Code], 2002 FA XUE YUE KAN [LEGAL SCI. MONTHLY] iss. 2, at 41. After the 2002 Civil Code Draft, Professor Jiang Ping continued to defend this position. See Jiang Ping, Min Fa De Hui Gu He Zhan Wang [Civil Law, Retrospective and Prospective], 2006 BI JIAO FA YAN JIU [J. COMP. L.] iss. 1, at 1 [hereinafter Jiang Ping, Retrospective and Prospective]; Jiang Ping, Zhi Ding Yi Bu Kai Fang Xing De Min Fa Dian [Drafting of an Open-Style Civil Code], 2003 ZHENG FA LUN TAN [TRIB. POL. SCI. & L.] iss. 1, at 1 [hereinafter Jiang Ping, Open-Style Code]; Jiang Ping, Zai Tan Zhi Ding Yi Bu Kai Fang Xing De Min Fa Dian [More on Drafting an Open-Style Civil Code], 2003 FA XUE JIA [JURISTS REV.] iss. 4, at 1 [hereinafter Jiang Ping, More on an Open-Style Code]. 40. Jiang Ping, More on an Open-Style Code, supra note 39, at 1; Liang Huixing, Dang Qian Guan Yu Min Fa Dian Bian Zuan De San Tiao Si Lu [The Current Three Ideas About the Codification of the Chinese Civil Law], 2003 LÜ SHI SHI JIE [LAWYER WORLD] iss. 2, at 4.

2009] CHINESE CIVIL LAW 1009 many detailed provisions governing the civil juristic relationships. This view is supported by the fact that Chinese legislation, research, and education on the civil law is based on the legal concepts and principles of German law, and the BGB is the fruit of the highest-level research on modern civil law. Furthermore, China needs a code with many detailed articles considering the low level of legal education that Chinese judges have received.41 For this reason, Professor Liang proposes the following structure for the future Chinese civil code: I. General Part; II. Real Rights; III. General Part of Obligations; IV. Contract; V. Torts; VI. Family Law; VII. Successions.42 Inspired by the codification experience of the 1992 Dutch Civil Code and 2001 Russian Civil Code, he suggests dividing the traditional part on obligations into three parts: General Part of Obligations, Contracts, and Torts.43 Another prominent professor of civil law, Professor Wang Liming, similarly argues that the Chinese civil code should be drafted principally based on the German codification experience and the result of research into Pandectenrecht. At the same time, Professor Wang argues that the Chinese civil code should strengthen the protection of personality rights, the lack of which is a shortcoming of the BGB, by including a separate part called Personality Rights and putting this part before the provisions about property law. So, Professor Wang would structure the future Chinese civil code as follows: I. General Part; II. Personality Rights; III. Marriage and Family; IV. Succession; V. Real Rights; VI. General Part of Obligations; VII. Contract; VIII. Torts.44 Other civil law scholars oppose the idea of following the German codification model and instead favor the adoption of the 1804 Code Napoléon because this code preserves the traditional division of ius civile into “persona-res-actio” in Gaius Institutiones and places more emphasis on the importance of the value of the person in civil law.45

41. See Liang Huixing, supra note 40, at 1; Liang Huixing, Zhi Ding Min Fa Dian De She Xiang [Observations on Drafting a Civil Code for China], 2001 XIAN DAI FA XUE [MOD. L. SCI.] iss. 2, at 5. These ideas had already been expressed some years before. See Liang Huixing, Guan Yu Zhi Ding Zhong Guo Min Fa Dian De Si Kao [Thoughts About the Drafting of the Chinese Civil Code], REN MIN FA YUAN BAO [PEOPLE’S COURT DAILY], Feb. 12, 2000, available at http://law.thinker.com/news.php?id=2274. 42. Liang Huixing, supra note 40, at 3. 43. Id. at 5. 44. WANG LIMING, ZHONG GUO MIN FA DIAN CAO AN JIAN YI GAO JI SHUO MING

[ADVISORY DRAFT OF CIVIL CODE OF PRC AND ITS NOTATIONS] 274 (2004); Wang Liming, Shi Lun Wo Guo Ming Fa Dian Ti Xi [On the Structure of the Chinese Civil Code], 2003 ZHENG

FA LUN TAN [TRIB. POL. SCI. & L.] iss. 1, at 23. 45. THE CODE NAPOLÉON (Bryant Barrett trans., Gray’s Inn 1811) (1804).

1010 TULANE LAW REVIEW [Vol. 83:999 According to this view, the future Chinese civil code should consist of four parts: I. General Provisions; II. Personal Relationships (with four chapters: Individual, Domestic Relations, Legal Persons and Succession); III. Property Relationships (with four chapters: Real Rights, Creditors Rights, Contract, and Intellectual Property); and IV. Supplementary Provisions (including the applicable laws in civil relations with foreigners).46 Similarly, some other Chinese civil law scholars agree that the future code should be structured into four parts, but with different headings: I. Preface; II. Law of Persons (with four chapters: General Provisions, Individual, Legal Persons and Other Juristic Subjects); III. Law of Rights (with six chapters: Personality Rights, Rights Regarding Domestic Relations, Right of Succession, Intellectual Property, Rights of Obligations, and Real Rights), and IV. Law of Torts.47

B. 2002 Civil Code Draft

After an intensive discussion with legal scholars, the Standing Committee of the National People’s Congress accepted Professor Jiang Ping’s pragmatic view of codification and on December 23, 2002, adopted the first draft of the civil code.48 Under the structure of this draft, consisting of 1209 articles, the Chinese civil code is divided into nine parts: I. General Part (117 arts.); II. Real Rights (330 arts.); III. Contract (428 arts.); IV. Personality Rights (29 arts.); V. Marriage (51 arts.); VI. Adoption (34 arts.); VII. Succession (37 arts.); VIII. Torts (68 arts.); and IX. Application of Civil Norms Concerning the Foreign Interest (95 arts.). The legislature and the majority of scholars believe this code will be a unified code not only for civil law but also for commercial law. The 2002 Civil Code Draft constitutes the basic working paper for the further codification of civil law in China, even if it is just a preliminary and provisional working paper. Its structure and

46. Xu Guodong, Min Fa Dian Cao An De Ji Ben Jie Gou [The Basic Structure of the Future Chinese Civil Code], 2000 FA XUE YAN JIU [CHINESE J. ON L.] iss. 2, at 45. 47. Ma Changhua & Qin Youtu, Lun Wo Guo Min Fa Dian De Ti Xi Jie Gou [On the Structure of the Chinese Civil Code], 2004 FA XUE YUE KAN [LEGAL SCI. MONTHLY] iss. 2, at 54. 48. See Liang Huixing, Zhong Guo Min Fa Dian Bian Zuan Yu Zheng Lun Dian [On the Process of Codification of the Chinese Civil Law and the Related Divergences], Jan. 5, 2003, http://www.ccelaws.com/minshifaxue/2009-01-01/2601.html (discussing the preparation of the 2002 Civil Code Draft); Wang Shengming, Fa Zhi Guo Jia De Bi You Zhi Lu- Bian Zhuang Zhong Hua Ren Ming Gong He Guo Min Fa (Cao An) De Ji Ge Wen Ti [The Way a “Rule by Law” Country Should Go: Some Problems on the Preparation of the Draft of the Civil Code of PRC ], 2003 ZHENG FA LUN TAN [TRIB. POL. SCI. & L.] iss. 2, at 26, 27 (discussing the general introduction of the 2002 Civil Code Draft).

2009] CHINESE CIVIL LAW 1011 contents demonstrate the strong influence of the common law on Chinese civil law in the following ways. First, it is not a traditional continental civil code because of its loose and unsystematic structure, even if it mainly adopts the legal concepts and institutions of the continental law. Its nine parts have been prepared separately, and no part refers to the other parts. The general part comes directly from the GPCL with only some slight amendments: the 1999 Contract Law constitutes the third part of the draft, “Contract”; the 1980 Marriage Law, modified in 2001, is incorporated without any change into the draft as the part “Marriage”; and the same thing has happened to the 1991 Adoption Law and the 1985 Law of Succession. Thus, the draft can be regarded as the mechanical assembly of its nine parts. This pragmatic method of codification is justified by the fact that China had promulgated many special civil laws prior to its decision to draft a civil code, and the most important function of China’s codification is the harmonization of the existing laws with judicial interpretations. Second, similar to the common law, the 2002 Civil Code Draft has no section on obligations but rather two parts: contract and torts, entitled “tort liability” in the draft. Prominent Chinese scholars justify the choice to dedicate an independent part to both contract and tort with three reasons.49 Firstly, obligations result frequently and principally from either contractual relationships or torts, and occasionally and accidentally from negotio gestorum and unjust enrichment. The first two kinds of relationships are much more complicated than the latter two, justifying the dedication of a single part in the code to each one. Secondly, contractual obligations are quite different from those of tort because: (1) the existence of contractual liability requires the breach of contractual duties. Generally speaking, such duties are owed to a determinable juristic subject, rather than to every person, and the content of the duties is fixed by the parties through the expression of their consent; (2) on the other hand, no tort liability exists without a prior infringement of an absolute right whose content is defined not by the parties but by law; (3) generally speaking, contractual liability is a strict liability in the sense that a defaulting party shall be liable for the breach of contract even if he is not at fault, unless there is cause for exemption from liability. However, in the field of tort law, fault is a fundamental factor for the determination of tort liability, and strict liability or reversal of

49. WANG LIMING, supra note 44, at 275; Liang Huixing, supra note 40, at 8.

1012 TULANE LAW REVIEW [Vol. 83:999 the burden of proof are the exceptions; and (4) due to the freedom of contract, the contractual parties can consensually discharge the contractual liability prior to the performance of the obligations. However, this is impossible in the case of obligations resulting from torts. Many Chinese scholars argue that the fact that “tort liability” is an independent part of the draft proves the strong influence of the common law.50 Thirdly, the absence of the general part on obligations in the 2002 Civil Code Draft is also justified by the fact that the provisions in this part overlap those on contract and that it is difficult to distinguish “creditor’s rights” from “real rights.”51 However, some scholars sharply criticized the absence of the general part on obligations in the 2002 Civil Code Draft, arguing that the concept of “obligations” is fundamental in the civil law. They contend that the general part on obligations is necessary for the civil code to have a logical and systematic structure because it is an indivisible part governing property relationships, being applicable not only to contract and tort but also to unjust enrichment and negotio gestorum.52 Third, the draft includes many important legal concepts and institutions of the common law. For example, the draft adopts the concept of breach of contract, rather than the “no performance of obligations” (Leistungstörung) in continental civil law, and includes some typical institutions of the common law, such as anticipatory breach of contract,53 undisclosed agency,54 the floating charge,55 and the protection of privacy.56

50. Jiang Ping, Open-Style Code, supra note 39, at 2; Jiang Ping, More on an Open-Style Code, supra note 39, at 2. 51. See Qin Youtu & Ma Chang Hua, Wo Guo Min Fa Dian Zhong Zhai Fa Zong Ze De Cun Fei [Advantages and Disadvantages of Providing the General Part of Obligations in the Chinese Civil Code], 2003 FA XUE YUE KAN [LEGAL SCI. MONTHLY] iss. 5, at 101, 104. Professor Jiang Ping also held this position, according to a report by the Shi Ji Jing Ji Bao Dao [Twenty-First Century Herald]. Fa Xue Quan Wei Cun Zai Zheng Yi, Min Fa Dian Chu Tai Kun Nan Chong Chong [Divergence Between the Most Prominent Jurists, Difficulty of the Promulgation of the Civil Code], SHI JI JING JI BAO DAO [TWENTY-FIRST CENTURY

HERALD], Jan. 5, 2003, available at http://www.shjubao.cn/epublish/gb/paper148/ 20030105/class014800018/hwz859638.htm; see also Jiang Ping, Retrospective and Prospective, supra note 39, at 20. 52. Liang Huixing, supra note 40, at 8; Wang Liming, Shi Lun Wo Guo Min Fa Dian Ti Xi [On the Structure of the Chinese Civil Code], 2003 ZHENG FA LUN TAN [TRIB. POL. SCI. & L.] iss. 1, at 24; see Liu Jingwei, Min Fa Dian Zhai Fa Li Fa Ti Xi Yan Jiu [Studies on the Legislative System of Obligations in the Civil Code], http://www.civillaw.com.cn/article/ default.asp?id=42987 (last visited Feb. 2, 2009). 53. Article 108 of the third part of this draft, “Contracts”—namely, the 1999 Contract Law—says, “Where one party to a contract expresses explicitly or indicates through its acts that it will not perform the contract, the other party may demand it to bear the liability for the

2009] CHINESE CIVIL LAW 1013 Fourth, this draft is characterized also by its fifth part called “Personality Rights,” which is a purely Chinese invention.57 Actually,

breach of contract before the expiry of the performance period.” 2002 Civil Code Draft, pt. III, art. 108 (submitted to the Nat’l People’s Cong., Dec. 23, 2002) (on file with author). 54. Article 402 of the third part of this draft, “Contracts”—namely, the 1999 Contract Law—says:

Where the agent, acting within the scope of authority granted by the principal, entered into a contract in its own name with a third person who was aware of the agency relationship between the principal and agent, the contract is directly binding upon the principal and such third person, except where there is conclusive evidence establishing that the contract is only binding upon the agent and such third person.

Its article 403 says: Where the agent entered into a contract in its own name with a third person who was not aware of the agency relationship between the agent and the principal, if the agent failed to perform its obligation toward the principal due to any reason attributable to such third person, the agent shall disclose the third person to the principal, allowing it to exercise the agent’s rights against such third person, except where the third person would not have entered into the contract with the agent had it known the identity of the principal. Where the agent failed to perform its obligation toward the third person due to any reason attributable to the principal, the agent shall disclose the principal to the third person, allowing the third person to select in alternative either the principal or the agent as the other contract party against whom to make a claim, provided that the third person may not subsequently change its selection of the contract party. Where the principal exercises the rights of the agent against the third person, the third person may avail itself of any defense it has against the agent. Where the third person selects the principal as the other party to the contract, the principal may avail itself of any defense it has against the agent as well as any defense the agent has against the third person.

55. Article 241 of the “Real Rights” part of this draft says that “[t]he following properties can be used for mortgage: . . . (2) Machines, means of transportation and other property.” Article 249 of the same part says:

[I]n case the parties mortgage the following property, they shall file registration with the relevant authorities . . . (5) in the case that the machines or other chattels belonging to an enterprise, the parties shall file registration with the administrative department for industry and commerce at the place where the property under mortgage resides.

56. Article 1 of the “Personality Rights” part of this draft qualifies the right of privacy, together with the right of life, right of name, right of portrait, right of reputation, right of honor, and right of credibility as the personality rights belonging to a natural person. The draft also dedicates the whole chapter 7, entitled “Right of Privacy” (arts. 25-29), in the “Personality Rights” part to provide for its protection. 57. The prevailing opinion is that the legal term “Personality Rights” (Ren Ge Quan in Chinese, Persönlichkeitsrechte in German) refers to the exclusive rights on personality interest, which an individual or a legal person shall have in order to safeguard his or her independent personality. The personality rights of an individual consist of the right of life, right of health, right of name, right of portrait, right of voice, right of reputation, right of credibility, right of honor, right of behavioral freedom, right of privacy, right of marital freedom, and right of sexual freedom. See YANG LIXIN, REN GE QUAN FA [LAW OF

PERSONALITY RIGHTS] 19 (2006) [hereinafter YANG LIXIN, PERSONALITY RIGHTS]; YANG

1014 TULANE LAW REVIEW [Vol. 83:999 no civil code in the world provides personality rights as an independent part. According to some Chinese scholars, the civil codes of Europe, such as the Code Napoléon and the BGB, have not sufficiently protected personal rights. Thus the future Chinese civil code should correct this defect and exceed the European model by dedicating an independent part of the code to personal rights.58 In this part, following LIXIN, ZHONG GUO REN GE QUAN FA LI FA BAO GAO [LEGISLATIVE REPORT ON LAW OF

PERSONALITY RIGHTS IN CHINA] 241 (2005) [hereinafter YANG LIXIN, LEGISLATIVE REPORT]. A natural person’s personality rights and his personal family rights (Shen Fen Quan in Chinese, Persönliche Familienrechte in German) form his personal rights (Ren Shen Quan in Chinese, Persönlicherechte in German). See YANG LIXIN, PERSONALITY RIGHTS, supra, at 19; YANG LIXIN, LEGISLATIVE REPORT, supra, at 241. In the 2002 Civil Code Draft, China’s legislature emphasized the importance of the protection of personality rights by dedicating an independent part on personality rights in the civil code. This part is divided into seven chapters: (1) General Provisions (seven articles), (2) Rights of Life and Health (five articles), (3) Rights of Name and Denomination (four articles), (4) Right of Portrait (two articles), (5) Right of Honor and Reputation (four articles), (6) Right of Credibility (Kreditfähigkeit, Xin Yong Quan) (four articles), and (7) Right of Privacy (four articles). Pursuant to article 1 of this part, the personal rights pertaining to a natural person are the following: (1) Rights of Life and Health, (2) Rights of Name, (3) Right of Portrait, (4) Right of Honor and Reputation, (5) Right of Credibility (Kreditfähigkeit), and (6) Right of Privacy. Legal persons have different personal rights than natural persons. They have only three kinds of personal rights: right of denomination, right of honor and reputation, and right of credibility. This means that legal persons do not have the right of privacy. Compared to the other personality rights in the draft, the right of credibility does not seem as familiar to us. It is possibly the first time that such right has been set out in a civil code draft. According to the Chinese philosophy, every person is presumably credible in the society; otherwise, it is impossible for human beings to live together in peace. Consequently, the credibility of a juristic subject shall be considered as a personality right. The draft has not given a definition of this right of credibility, but the prevalent opinion is that it should be understood as a right belonging duly to any individual and with corresponding economic interests deriving from his or her capacity as evaluated by the Gemeinschaft. WANG LIMING, MIN FA QIN QUAN XING

WEI FA [CIVIL LAW: LAW OF TORT] 299 (1993); YANG LIXIN, REN SHEN QUAN FA LUN [ON

THE LAW OF PERSONAL RIGHTS] 698 (2001). In my opinion, the right of credibility refers to the general guarantee that a person can offer to others in relation to his or her actual capacity of doing something or of abstaining from doing it. In relation to the provisions of the right of credibility in the 2006 civil code draft, the Chinese legislature seems to draw its inspiration from the 1970 Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681 (2006), and section 824 of the BGB (Endangering Credit), which states:

(1) A person who untruthfully states or disseminates a fact that is qualified to endanger the credit of another person or to cause other disadvantages to his livelihood or advancement must compensate the other for the damage caused by this even if, although he does not know that the fact is untrue, he should have known. (2) A person who makes a communication and is unaware that it is untrue is not obliged to pay damages if he or the receiver of the communication has a justified interest in the communication.

Bürgerliches Gesetzbuch [BGB] [Civil Code] § 824, available at http://www.gesetze-im-internet.de/englisch_bgb/; see YANG LIXIN, LEGISLATIVE REPORT, supra note 57, at 398. 58. Wang Jiafu, Er Shi Yi Shi Ji Zhong Guo Min Fa De Fa Zhan [The Development of Chinese Civil Law in the Twenty-First Century], 2003 FA XUE JIA [JURISTS REV.] iss. 4, at

2009] CHINESE CIVIL LAW 1015 the experience of the common law, the Chinese legislature clearly provides not only the right of privacy, but also the right of credibility.

C. Debate on the 2002 Civil Code Draft: Anticodification and Decodification Ideas in China

Ever since the publication of the 2002 Civil Code Draft, the debate on the codification of the civil law has been very intense in China. In communis opinio, the codification of the civil code is urgently needed to realize the rule of law and guarantee its certainty, and the 2002 Civil Code Draft is an important step toward the codification of the civil law in China. The majority of the codifica-tion’s proponents favored the 2002 Civil Code Draft’s adoption of many legal institutions and concepts of the common law, in the hopes that in this way, the future Chinese civil code would surpass the Code Napoléon and the BGB. However, some scholars argue that it is not necessary to codify the civil law in today’s China, considering the strong influence of the common law in Chinese civil law, the expansive role of juridical interpretation, the tendency toward decodification in Europe, and China’s less-developed research on the civil law.59 Some scholars even think that the trend in the development of civil law is moving away from codification because a civil code is too rigid to promptly apply to new relationships such as virtual property, and it is frequently eroded

9; Wang Liming, supra note 52, at 21; Wang Liming, Wo Guo Min Fa Dian Zhong Ren Ge Quan de Jian Gou [Construction on the Protection of Personality Rights in the Civil Code of PRC], 2003 FA XUE JIA [JURISTS REV.] iss. 4, at 13; YANG LIXIN, LEGISLATIVE REPORT, supra note 57, at 93. However, some prominent scholars are opposed to the creation of an independent part called “Personality Rights” in the civil code, given that such rights belong only to natural persons. They feel that this kind of right should be protected in substance by a procedural law rather than a substantive law like the civil law. See Jiang Ping, Retrospective and Prospective, supra note 39, at 20; Liang Huixing, supra note 40, at 5. 59. See Ma Junju, Man Tan Min Fa Zou Shi He Wo Guo Min Fa Dian De Zhi Ding [General Speech About the Tendency of the Civil Law and the Codification of the Chinese Civil Law], 2003 TSINGHUA FA XUE [TSINGHUA L.J.] iss. 3, at 340, 369; Li Kaiguo, Ping Min Fa Cao An De Jie Gou [On the System and Structure of the Draft of the Civil Code], 2003 XIAN DAI FA XUE [MOD. L. SCI.] iss. 4, at 19; Tu Yong Qiang & Kang Na, Zhong Hu Ren Min Gong He Guo Min Fa Dian De Zhi Ding Ying Gai Huan Xing [It Is Necessary To Postpone the Promulgation of the Civil Code of PRC ] , in MING FA FA DIAN HUA, JIE FA DIAN HUA HE

FAN FA DIAN HUA [CODIFICATION, DECODIFICATION AND ANTICODIFICATION OF CIVIL LAW] 585 (Zhang Lihong & Gao Fuping eds., 2008) [hereinafter CODIFICATION, DECODIFICATION]; Shao Shixing, Ying Dang Zhong Shi Wo Guo Min Fa Fa Dian Hua De Zhi Yue Xing Yin Su [It Is Necessary To Pay Attention to the Factors Restricting the Codification], in CODIFICATION, DECODIFICATION, supra, at 616.

1016 TULANE LAW REVIEW [Vol. 83:999 by the special laws and customary law.60 In their opinion, China should abandon the codification and adopt case law.61 Given the absence of any case law tradition in Chinese history and the limited number of well-trained judges in China, the majority of civil law scholars are opposed to this no-codification idea. In any event, comparing the experiences of the rest of the world is extremely important to the Chinese legislature. For this reason, on March 27, 2003, the Chinese legislature, namely the Standing Committee of the National People’s Congress, organized an inter-national symposium on the 2002 draft of the Chinese civil code. Dozens of prominent Chinese and Japanese civil law scholars from more than ten different universities and research institutes in China and Japan made presentations at the conference. Its participants diverged significantly on the structure of the code, the reasonability of separating the part addressing obligations into contracts and torts, the concepts of personality rights, and the necessity of setting them out in an independent part of the code, as well as how to define the system of real rights.62 The same discussions also appeared in a large-scale

60. Xu Xuelu & Liang Peng, Shi Dai Chao Liu-Fei Fadian Hua [Modern Trend: Noncodification], in CODIFICATION, DECODIFICATION, supra note 59, at 574. 61. Id. 62. See Yang Lixin, Zhong Guo Min Fa Dian Cao An Guo Ji Yan Tao Hui Ji Yao [Notes on the International Symposium on the Draft of the Chinese Civil Code], in MIN FA

PAN JIE YUAN JIU YU SHI YONG [RESEARCH ON THE CASES OF THE CIVIL LAW AND ITS

APPLICATION] 143-62 (2004) (discussing the differences of opinion presented at the symposium). Besides the ideas on the structure of the future Chinese civil code, expressed by the Chinese scholars and described above in this Article, supra notes 48-58, the prominent Japanese jurist, Professor Eiichi Hoshino of Tokyo University, suggested the Chinese legislature adopt the structure of the Cambodian Civil Code Draft prepared by the Japanese jurists, which is composed of the General Part and the Special Part (divided into five parts: Persons, Real Rights, Guarantee of Obligations, Family, and Succession). Another famous Japanese civil law scholar, Professor Zentarou Kitagawa of Kyoto University, seemed inclined to agree to the current legislative model of Chinese civil law, asserting that it is appropriate to set forth all fundamental concepts and institutions in a civil code and leave the different special laws to govern in detail the concrete civil relationships, such as the real rights, personality rights, creditor’s rights, etc. Some scholars are opposed to the position adopted by the 2002 Civil Code Draft, according to which the civil code need dedicate an independent part to the personality rights, arguing that the protection of personality rights is only a question on the technique of codification, and it makes no difference whether they are set into an independent part of civil code or not. The majority of scholars in this conference, guided by Professor Zentarou Kitagawa and Professor Liang Huixing, sharply criticized the absence of the general part of obligations in the 2002 Civil Code Draft, affirming that determining how to regulate negotio gestorum and unjust enrichment in a civil code without a general part of obligations is problematic. The lawyers agreeing on such absence, for example, Professor Yang Lixin of Remin University in Beijing, replicated that the Chinese legislature could adopt the solution offered by the French

2009] CHINESE CIVIL LAW 1017 international conference held in Shanghai in April, 2005 entitled “Codification, Decodification, and Anticodification of the Civil Law” organized by the European and Roman Law Research Center and the Civil Law Research Center of East China University of Politics and Law. This conference constitutes the most significant international dialogue to date on the question of whether or not to codify the civil law in China, with more than 160 Chinese civil law scholars coming from all over China (including Taiwan) and eighteen leading foreign professors from Germany, Italy, France, Belgium, Spain, Hungary, Korea, and Argentina participating or contributing papers.63 This conference is noteworthy for the strong expression of ideas on the decodification and recodification of the civil code in Europe as well as the noncodification of the civil law in China. In particular, the distinguished Italian scholar Natalino Irti presented an open letter to China’s civil law scholars and legislature, arguing that the current Chinese legislative model on the civil law, which is characterized by providing some general abstract principles of the civil law in a civil code (or a corresponding fundamental statute) and the detailed norms in the different special laws, may be a trend in the legislative development of the civil law in the world. Agreeing with this idea, the author of this Article asserts that China’s approach to codification will be totally different from that of the traditional continental law and that to realize success with this codification, it is currently more important

Civil Code by qualifying negotio gestorum and unjust enrichment as quasi contract or set them forth in the general part of the civil code. As to the real rights, Professor Sun Xianzhong of the National Social Academy in Beijing, thought that the types of real rights in China needed to be created on the basis of studies on the real rights in customary law and insisted the necessity of the adoption of the Abstraktionsprinzip in German law. With respect to the Abstraktionsprinzip, many law experts, including Professor Eiichi Hoshino, were against Professor Sun Xianzhong’s position. In their opinion, it is too complicated to carry out this principle in law practice and it is enough for the legislature to safeguard the transaction on the real rights and protect the interests of the parties by building a good system on the registration on the real rights. 63. For example, Professor Rainer Schulze (Münster University, Germany), Professor Okko Behrends (Göttingen University, Germany), Professor Massimo Bianca (La Sapienza University, Italy), Professor Natalino Irti (La Sapienza University, Italy), Professor Giuseppe Gandolfi (Pavia University, Italy), Professor Maria Letizia Ruffini (Milan University, Italy), Professor Alessio Zaccaria (Verona University, Italy), Professor Stefano Troiano (Verona University, Italy), Professor Jean-Louis Halpérin (École Normale Supérieure of Paris), Professor Betrand Fages (XII University of Paris), Professor Dirk Heirbaut (Ghente University, Belgium), Professor Gábor Hamza (University of Budapest, Hungary), Professor Byound Jo Choo (National University of Seoul, Korea), and Professor Esther Arroyo i Amayuelas (Barcelona University, Spain) contributed their papers to this conference. See Zhang Lihong, Xu [Preface] to CODIFICATION AND DECODIFICATION, supra note 59, at 3.

1018 TULANE LAW REVIEW [Vol. 83:999 and urgent for China to train more highly qualified civil law jurists than to codify a civil code.64

D. 2007 Real Right Law

After the promulgation of the 1999 unified Contract Law and the publication of the 2002 Civil Code Draft, China’s legislature accelerated its drafting of a real rights law in order to provide the principal rules on the protection of property rights in a social market economy. Following the tradition of the continental law, the Chinese legislature began drafting the Real Right Law in 1993. On March 16, 2007, China’s Real Right Law was promulgated by the National People’s Congress by an overwhelming margin (2799 votes in favor out of a total 2889 votes).65 Its enactment set several records in Chinese legislative history. From its first draft in 1993 to its promulgation in 2007, its passage took fourteen years, making it the longest time period needed to enact a law in the PRC’s history. From its initial passage in the National People’s Congress in 2002, its drafts were discussed eight times in parliament, setting another record in the PRC’s legislative history. This law has 247 articles and six parts, with its structure as follows: Part I. General Provisions (arts. 1-38); Part II. Ownership (arts. 39-116); Part III. Usufructuary Rights (arts. 117-169); Part IV. Security Rights for Obligations (arts. 170-240); Part V. Possession (arts. 241–245); and Part VI. Supplementary Provisions (arts. 246-247). This law has the following characteristics: 1. It is a socialist real right law, aiming to protect socialist ownership, the public interest, and socialist ideologies. For instance, it classifies ownership into state, collective, and private ownership, but compared to the traditional protection of socialist ownership in the 2002 Civil Code Draft, it highlights some new ideas. Following the constitutional amendment of 2004 on the protection of private ownership, the Real Right Law recognizes the equal protection of state, collective, and private real rights. “The state, collective and private ownership shall be protected by law. It is

64. Zhang Lihong, Min Fa Jie Fa Dian Hua He Zhonguo Min Fa Dian De Zhi Ding [Decodification of Civil Code and the Drafting of Future Civil Code of PRC], 2006 FA XUE

YUE KAN [LEGAL SCI. MONTHLY] iss. 4, at 45. 65. Real Right Law (promulgated by the Nat’l People’s Cong., Mar. 16, 2007, effective Oct. 1, 2007), LAWINFOCHINA (last visited Jan. 30, 2009).

2009] CHINESE CIVIL LAW 1019 forbidden for anyone to occupy or destroy in any way the state, collective and private property.”66 The law provides four different ways that the state may exercise ownership, with the intention of preventing or limiting the loss of state property: (1) the State Council exercises state ownership on behalf of the state on all state-owned natural resources such as mines, water, sea, state-owned land, etc.;67 (2) the public administrative body has the right to possess, use, grant usufructs, and dispose of the chattels or real rights directly under its control, according to the law or administrative regulations;68 (3) a nonprofit organization established by the state has the right to occupy, use, grant usufructs, and dispose of the mobile and immobile things directly under its control, according to the law or administrative regulations;69 and (4) as to an enterprise invested by the state, the central or local governments perform the duties of an investor, being the holder of the owner-equity property in the name of the state.70 2. The law expressly provides that reasonable compensation shall be made for any expropriation or requisition of property for the public interest.71 Because China’s constitution provides that the land belongs only to the state or the collective units, the 2007 Real Right Law provides some Chinese-styled ius in re aliena concerning the use of the land in China by private interests, namely, the right of contracting rural land,72 the right to use state-owned land for building,73 and the right to use collective land for building.74 Being configured as ius in re aliena, together with the traditional servitudes, all of these rights not only can be extended upon their expiration, but they also are transferable between private parties under the conditions provided by law. In this way, the Chinese legislature aims at making it possible for the private sector to use collective and state land and overcome the control of state or collective ownership of it. To protect the state and collective interest, it is forbidden to give in mortgage the ownership of the land; the right of use of the collective

66. Id. art. 4. 67. Id. art. 45. 68. Id. art. 53. 69. Id. art. 54. 70. Id. art. 55. 71. Id. arts. 42-44. 72. Id. arts. 124-134. 73. Id. arts. 135-154. 74. Id. arts. 152-155.

1020 TULANE LAW REVIEW [Vol. 83:999 land (except as otherwise provided by law); or the right of use of any educational, medical, or other facilities for the public interest, such as a public school, kindergarten, hospital, etc.75 3. In terms of legislative technique, this law is modeled strongly on German law, even if it does not clearly provide the German Abstraktionsprinzip on the transfer of the real rights. It designs the uniform registration system for real estate,76 provides the servitudes,77 and considers the nature of condominium ownership as a mixture of the private ownership of an apartment, the co-ownership of things for common use in a building, and the right of common management of the building by all the owners of the apartments in the same building.78 In addition, it qualifies the possession as a fact but a right79 and protects the acquisition of the ownership by the holder of the things in good faith.80 4. The law also includes some property institutions of the common law. For example, it adopts credit mortgage81 and the floating charge,82 and it recognizes the practice of mortgaging a property still under construction, such as a building, a ship, or an aircraft, or even future mobile things.83

E. Academic Criticism of the 2007 Real Right Law

Since its promulgation, China’s Real Right Law has been heavily criticized in Chinese academia with respect to the following main subjects:

1. On the Protection of State Property

It has been argued that the Real Right Law should strengthen the leading position of public ownership. The legislature’s position of protecting state, collective, and private ownership equally is putting an end to China’s socialism and therefore accelerating the loss of state-owned property and the development of capitalism in China.84 So, in

75. Id. art. 184. 76. Id. art. 10. 77. Id. arts. 156-169. 78. Id. art. 70. 79. Id. art. 241. 80. Id. art. 106. 81. Id. art. 223. 82. Id. art. 228. 83. Id. art. 180. 84. On August 12, 2005, Professor Gong Xiantian of Beijing University presented an open letter entitled “A Draft of Real Rights Law Against the Constitutional Chapter and the

2009] CHINESE CIVIL LAW 1021 order to prevent the loss of state property, more research must be devoted to the Russian Civil Code and other socialist civil codes rather than the civil codes of capitalist countries. This position has been criticized sharply by the majority of civil law scholars in China.85

2. On the Possibility of Marketing the Right To Use Rural Land for Housing

The Real Right Law does not provide anything on the acquisition, exercise, or extinction of the right to use rural land for housing, leaving it to be governed by the law on land administration, other relevant laws, and the relevant state policy.86 In accordance with the 2007 Land Administration Law87 and the 1995 Guaranty Law,88 the holder of this right may neither transfer it to other persons nor put it in mortgage. By forbidding the transfer of the right to use rural land for housing, China’s legislature tried to guarantee every peasant his own house and protect China from the high risk of social turmoil created by homelessness. This situation makes it impossible to estimate the value of this right. Some have argued that this right should be allowed to be sold, exchanged, or put in mortgage freely if the holder has enough steady

Fundamental Principles of Socialism” to the Standing Committee of the National People’s Congress. In it, he asserted that the 2005 draft insinuated thoughts in favor of the privatization of public assets, the protection of private property, and the development of capitalism because it had provided neither the so-called “No-Violability of Socialist Public Ownership” constitutional principle, nor the correct solution on how to prevent the loss of state-owned assets. Thus, he argued that the draft of the Real Right law represented a step backward and strongly opposed its enactment. The majority of civil law scholars criticized Professor Gong Xiantian’s opposition to the draft of the Real Right Law. As a matter of fact, this debate on Professor Gong Xiantian’s position demonstrates the divergence on the method of Chinese socialist reform among today’s Chinese intellectuals. See Jiang Ping, Jian Chi Shen Me Yang De She Hui Zhu Yi [In What Kind of Socialism Shall We Insist?], 2007 YANHUANG CHUNQIU [SPRING & AUTUMN

CHINA] iss. 4, at 29. 85. Yu Nengbin, Wo Guo Wu Quan Li Fa Jie Jian De Li Xing Xuan Ze He Fan Shi [Reasonable Choice and Reflections on the Legislation on Real Right Law of China], 2006 HUAN QIU FA LÜ PING LUN [GLOBAL L. REV.] iss. 1, at 22. 86. Real Right Law, art. 153 (promulgated by the Nat’l People’s Cong., Mar. 16, 2007, effective Oct. 1, 2007), LAWINFOCHINA (last visited Jan. 30, 2009). 87. Land Administration Law, art. 62 (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Aug. 29, 1998, effective Jan. 1, 1999, amended Aug. 28, 2004), LAWINFOCHINA (last visited Jan. 30, 2009). 88. Guaranty Law, art. 37 (adopted by the Standing Comm. Nat’l People’s Cong., June 30, 1995, effective Oct. 1, 1995), LAWINFOCHINA (last visited Jan. 30, 2009).

1022 TULANE LAW REVIEW [Vol. 83:999 income and such a pledge is agreed to by the owner.89 It is notable that in October of 2008 the Chinese central government decided to make transferable the right to use rural land for housing, fully allowing its pledge, purchase, sale, and exchange. Currently, how to build up an efficient and safe system for its transfer is a key subject of research for the Chinese legislature and lawyers.90

3. On the Usucapion

The 2007 Real Right Law cancels the institution of usucapion which was provided for in the 2002 Civil Code Draft. Some prominent scholars explain that such an institution is impracticable in the modern continental law due to the expansion of the institution of “acquisition of the ownership by the possessor in good faith,” and it is against the Chinese virtue according to which anyone finding a lost thing shall give back it to its owner.91 In many civil law scholars’ opinions, such a position is not plausible because it makes it difficult to determine the ownership of derelict things, for example, the ownership of recyclable rubbish.92

4. On How To Define the Public Interest

There is also debate regarding how to define the public interest and quantify reasonable compensation in case of requisition and expropriation of property. The majority of scholars think that a special administrative law and judicial interpretation are needed to resolve the problem.93 China’s legislature planned to enact a special administrative

89. Guo Mingrui, Guan Yu Zhai Ji Di Shi Yong Quan De Li Fa Jian Yi [Suggestions on Legislation of the Right of Use of Rural Land for Housing], 2007 FA XUE LUN TAN [LEGAL F.] iss. 1, at 24. 90. See LU XIAOCHUAN, ZHAI JU DI FA LÜ WEN TI [QUESTIONS ON RIGHT OF RURAL

LAND FOR HOUSING] (2008). 91. DONG XUELI, WU QUAN FA YAN JIU [STUDIES ON REAL RIGHT LAW] 286 (2007). 92. Li Jianhua, Peng Chengxin & Yang Daixiong, Zhong Guo Wu Quan Fa Li Fa Ji Shu Ruo Gan Qu Exian de Fen Xi Yu Wan Shan [Analysis on Several Defects in Legislative Technique for Real Right Law], 2007 DANG DAI FAXUE [CONTEMP. LEGAL SCI.] iss. 4, at 139. 93. Because it is impossible to demarcate clearly and timely the boundary of the public interest due to the ambiguity and elasticity of the concept, following the suggestion of the scholars, the Chinese legislature is inclined to provide in a simple and general way that a confiscation or requisition could be carried out if necessary to protect the public interest. It is then likely to establish a detailed administrative procedure for the demarcation of the public interest in concrete cases and related administrative proceedings for the eventual claim or petition, attributing to the judge the power to decide definitively if a concrete confiscation or requisition is in conformity with the protection of the public interest. See Hu Honggao, Lun Gong Gong Li Yi De Fa Lü Jie Ding [On the Legal Concept of Public Interests], 2008 ZHONG

GUO FA XUE [CHINA LEGAL SCI.] iss. 4, at 64; Wang Liming, Wu Quan Fa Shi Shi Si Da

2009] CHINESE CIVIL LAW 1023 law in 2009, entitled Cheng Shi Chai Qian Tiao Li [Regulation on Demolition of Urban Real Estate], to regulate the administrative procedure of the expropriation of property.

5. On the Gratuitous Character of the Return of a Lost Thing

The 2007 Real Right Law provides that in the case of the return of a lost thing, the owner shall sustain only the expenses for keeping it,94 and the person who has found or returned it has no right to be paid by the owner, nor does he acquire ownership of the thing if nobody claims it.95 The legislature justifies such provisions by saying that they are in conformity with traditional Chinese and socialist virtues. The opposing view is that such provisions create incentives not to return the lost thing, and that instead, the owner should be obliged to pay the finder a fee corresponding to a certain percentage of the thing’s value—for instance, twenty percent.96

6. On the Concept of Real Right and the Nature of Real Right Law

Some scholars suggest abandoning the concept of “real right” in China’s law and consider the promulgation of this law to be a legislative decision against the trend toward further development of property law in the world,97 based on the following two arguments. First, the modern concept of “real right” (Sachenrecht) is just a product of the German pandectistic law of the nineteenth century. In that period, society was predominately agricultural and the main economic resources were represented by tangible property (principally immobile things). The main economic resources in today’s industrial or postindustrial society are intangible things such as intellectual

Dong Xiang [Four Tendencies in the Implementation of the Real Right Law], http://www. dffy.com/faxuejieti/ms/200804/20080403114054.htm (last visited Mar. 30, 2009). These advisors are inspired by the legislative experience on the protection of the public interest in cases of confiscation or requisition in the United States, France, Canada, Australia, the Netherlands, etc. 94. Real Right Law, art. 112 (promulgated by the Nat’l People’s Cong., Mar. 16, 2007, effective Oct. 1, 2007), LAWINFOCHINA (last visited Jan. 30, 2009). 95. Id. arts. 109, 113. 96. See Qiao Jiao, You Heng Chan Zhe You Heng Xin [One Who Has Clear Property Rights, Has Consistent Volition], 2005 CHANG QUAN DAO KANG [PROPERTY RIGHTS GUIDE] iss. 8, at 14. 97. Xie Zengyi & Ran Hao, Cai Chan Fa Yu Wu Quan Fa Chan Bi Jiao “Wu Quan Fa Cao An” [The Comparative Studies on Property Law and Real Right Law—Comments on the Draft of the Real Right Law], 2006 HUAN QIU FA LÜ PING LUN [GLOBAL L. REV.] iss. 1, at 9.

1024 TULANE LAW REVIEW [Vol. 83:999 property and virtual property, so it is not necessary to draft the real right law. Second, it is difficult to define the concept of “real right.” The distinction between real rights and creditor’s rights is so ambiguous that neither the Roman Law nor the French Civil Code creates (or adopts) such a concept of “real right.” The German system of real right law—for example, the principle of Abstraktionsprinzip—was formed and developed in a very special social and economic context, which was quite different from that of today’s China. In short, the concept of “real right” is antiquated and obsolete and should be replaced by the common law concept of “property right.”98 The adoption of the floating charge, the trust, and project finance in the continental law make it impossible for that law to define clearly the real right. So, it is less useful to study German law on real rights, but it is becoming more important to study the common law of property for its flexibility as well as the related Russian law for its social context and historical experience, which are similar to those of China.99 In addition, in the opinion of some leading public law scholars,100 the real right law is not only a private law but also a public law because it sets out the administrative process and means for the protection and transfer of the real rights. It is therefore incorrect to define the 2007 Real Right Law as a private law; a modern and scientific system of real rights should not be established solely in a civil code.

F. The Latest Developments in the Drafting of China’s Tort Law

Having passed the Real Right Law in 2007, the Chinese legislature is currently codifying a special law on torts. Similar to the unification of the law of contracts in 1999, the drafters of the tort law are seeking to harmonize all existing norms101 and eliminate the conflicts among them.

98. See id. at 38; Chen Taihe, Zhang Haimin & Xu Liuxin, Wu Quan Fa Ying Dang Huan Xing Shen Xing [It Is Necessary To Postpone the Promulgation of Real Right Law], 2006 HUAN QIU FA LÜ PING LUN [GLOBAL L. REV.] iss. 1, at 59. 99. Yu Nengbin, supra note 85, at 22. 100 For all, see Tong Zhiwei, Wu Quan Fa Li Fa Guo Cheng Ru He Zuo Qia Dang Ping Jia [How To Valuate the Legislative Process of Real Right Law], 2007 FA XUE YUE KAN [LEGAL SCI. MONTHLY] iss. 4, at 27. 101. Current Chinese statutory norms on torts consist of the 1986 GPCL and the 1988 Opinions of the Supreme People’s Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law (Jan. 26, 1988), LAWINFOCHINA (last visited Jan. 30, 2009), three judicial interpretations on torts in 1998, 2001, and 2003, and many administrative laws or regulations, see, e.g., Product Quality Law (promulgated as amended by the Standing Comm. Nat’l People’s Cong., July 8, 2000, effective Sept. 1, 1993),

2009] CHINESE CIVIL LAW 1025 The part on torts in the 2002 Civil Code Draft serves as the legislature’s basic working paper for the future tort law. This part has sixty-eight articles featured in ten chapters: I. General Provisions (arts. 1-7); II. Claims for Compensation (arts. 8-20); III. Causes of Justification for the Exemption from Liability (articles 21-24); IV. Tort Liability Resulting from Motor Vehicle Accidents (arts. 25-30); V. Liability for Environmental Damage (arts. 31-34); VI. Product Liability (arts. 35-60); VII. Tort Liability Resulting from Highly Dangerous Work (arts. 41-52); VIII. Tort Liability for Damages to Persons Deriving from Animals (arts. 53-54); IX. Liability for Damages to Persons Resulting from Objects Fallen from Buildings (arts. 55-60); and X. Special Provisions on the Bearer of Tort Liability (arts. 61-68). While drafting the tort law, the legislature used not only the working paper, but also the advisory drafts on tort law prepared by civil law scholars.102 China’s legislature also conducted significant investigation into the effects of the current laws’ application. In other words, the drafts of China’s tort law resulted from the studies on tort theories in continental and common law and the related legal experiences of Chinese judges in the application of the existing tort rules. After six years of drafting work and consulting with civil law scholars dozens of times, the Legislative Affairs Committee of the National People’s Congress finalized a new version of the Tort Law Draft in September of 2008 and revised it twice in October and December of 2008. The latest version of the draft, namely the second official version of the Tort Law Draft, was submitted to the Standing

LAWINFOCHINA (last visited Jan. 30, 2009); Law on State Compensation (promulgated by the Standing Comm. Nat’l People’s Cong., May 12, 1994, effective Jan. 1, 1995), LAWINFOCHINA (last visited Jan. 30, 2009); Regulation on the Handling of Medical Accidents (promulgated by the State Council, Feb. 20, 2002, effective Sept. 1, 2002), LAWINFOCHINA (last visited Jan. 30, 2009); Regulation on Work-Related Injury Insurances (promulgated by the State Council, Apr. 27, 2003, effective Jan. 1, 2004), LAWINFOCHINA (last visited Jan. 30, 2009); Law on Road Traffic Safety (promulgated as amended by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2007, effective May 1, 2004), LAWINFOCHINA (last visited Jan. 30, 2009), as well as a huge number of regional laws and regulations on torts. 102. So far, the advisory drafts on tort law prepared by civil law scholars are the following: WANG LIMING, ZHONG GUO MIN FA DIAN XUE ZE JIAN YI GAO JI LI FA LI YOU: QIN QUAN XING WEI FA BIAN [ADVISORY DRAFT OF CHINESE CIVIL CODE ADVISED BY THE

SCHOLARS: PART ON TORT LAW] (2003); LIANG HUIXING, MIN FA DIAN JAN YI GAO [ADVISORY

DRAFT OF CHINESE CIVIL CODE] 305-28 (2003); XU GUODONG, LÜ SE MIN FA DIAN CAO AN [PROJECT ON GREEN CIVIL CODE] 705-25 (2004); YANG LIXIN, ZHONG HUA REN MIN GONG

HE GUO QIN QUAN XING WEI JIAN YI GAO [ADVISORY DRAFT ON TORT LAW OF PRC] (2007).

1026 TULANE LAW REVIEW [Vol. 83:999 Committee of the National People’s Congress in December of 2008,103 making it the object of much discussion in the National People’s Congress and among lawyers. The Chinese Tort Law is scheduled to be promulgated by 2010.

G. The Latest Version of the Tort Law Draft: Content and Characteristics

As mentioned above, the latest version of the Tort Law Draft was completed in December of 2008 and is significantly different from the part on torts in the 2002 Civil Code Draft. It is composed of eighty-eight articles divided into twelve chapters: I. General Provisions (arts. 1-6); II. Constitutive Elements of Tort Liability and the Methods of its Burden (arts. 7-25); III. Causes of Justification for the Exemption from Tort Liability or Its Mitigation (arts. 26-30); IV. Special Provisions on the Bearer of Liability (arts. 31-38), which concerns attribution of liability to persons other than the wrongdoer; V. Product Liability (arts. 39-45); VI. Tort Liability Resulting from Motor Vehicle Accidents (arts. 46-52); VII. Liability for Damages Resulting from Medical Treatment (arts. 53-66); VIII. Liability for Environmental Damage (arts. 67-71); IX. Tort Liability Resulting from Highly Dangerous Work (art. 72); X. Tort Liability for Damages to Persons Deriving from Animals (arts. 78-81); XI. Liability for Damages to Persons Resulting from Underground Objects or Those Fallen from Buildings (arts. 82-87); and XII. Complementary Provisions (art. 88). This draft is characterized by its mixture of continental law and common law. It follows the traditional legislative model in continental law, providing some general clauses on torts and then some specific clauses related to special (or typical) torts. However, some of these provisions on special torts come directly from the common law. The general clauses in this draft make up the first three chapters (arts. 1-30) and concern the principle of attribution of tort liability, the active legitimacy of actions of tort, the method of discharge of tort liability, the division of liability, and causes for the exemption of liability.104 In principle, these general clauses are applicable to any torts except the special torts provided in some specific clauses. From chapter 4 to chapter 11 (arts. 31-87), this draft provides the twelve

103. See Bai Long, Qin Quan Fa Cao An Guan Zhu Qin Quan Xin Lei Xing: Qin Quan Wang Zhan Xu Cheng Dan Ze Ren [Tort Law Draft Looks to New Forms of Torts Web Site Should Be Liable for Online Torts], REN MIN RI BAO [PEOPLE’S DAILY], Dec. 24, 2008, http://www.ce.cn/xwzx/gnsz/gdxw/200812/24/t20081224_17765994.shtml. 104. December 2008 Tort Law Draft, arts. 1-30.

2009] CHINESE CIVIL LAW 1027 types of special torts: torts from vehicle accidents, torts from environmental pollution, torts from product defects, torts from highly dangerous work or objects, torts from medical accidents, torts from animals, torts from objects underground or fallen from buildings, torts from the conduct of wards, torts from conduct in officis by a natural person on behalf of a legal person, torts by an internet service provider, torts from negligence in the protection of transaction security (Verkehrssicherungspflichen), and torts from the negligence of a kindergarten or school in relation to the duty of care for children. As far as the typenzwang (categorization) of these special torts is concerned, the legislature has mainly taken the related legislative experience of continental law into consideration, but it has also considered the experience of the common law—for example, liability for damages resulting from environmental pollution, product defects, medical accidents, and torts from highly dangerous work or objects. The Tort Law Draft also includes the well-known “fault liability” principle from Roman law and modern continental law, naming fault as the principal factor in determining whether the wrongdoer should bear the tort liability105 and whether to attribute tort liability between the parties106—namely, applying so-called contributory negligence—among the joint wrongdoers107 according to the degree of their fault. Following the historical experience of modern continental tort law, article 7 expressly provides for the presumption of fault—namely, the reversal of the burden of proof—saying that “in the case that as provided by law, there is presumed a fault, the wrongdoer shall bear tort liability unless he proves its absence.”108 In concrete terms, the draft sets out the application of the presumption of fault to some special torts. For example, it states that “in the case that the raised animals cause damages to persons, the raiser shall be liable for the torts. However, if it is proved that the damages result from the gross negligence of the damaged persons, the liability of raiser shall be mitigated or exempted.”109 The same rule applies in cases of damages to persons resulting from underground objects or those fallen from buildings,110 as well as damages arising from medical treatment.111

105. Id. art. 7. 106. Id. art. 26. 107. Id. art. 16. 108. Id. art. 7. 109. Id. art. 78. 110. Id. art. 82. 111. Id. art. 58.

1028 TULANE LAW REVIEW [Vol. 83:999 However, under the influence of the theory of strict liability in common law, this draft states that “in the case that the law provides the burden of liability for a person without requirement of the existence of his fault, such person shall be liable”112 and “in case of damages resulting from highly dangerous risk, the wrongdoer shall be liable even he has no fault, except existence of causes of justification for the exemption from liability as provided by law.”113 This kind of rule on the attribution of tort liability without fault also exists in the GPCL114 and is applicable to environmental torts,115 and torts from product defects.116 These draft provisions on strict liability and product liability derive directly from section 402A of the American Restatement (Second) of Torts.117 In terms of attribution of liability to persons other than the wrongdoer, this draft incorporates both the continental and common law experience. It adopts the traditional continental solution on the attribution of liability in the torts of wards, setting out that the guardian

112. Id. art. 8. 113. Id. art. 72. 114. General Principles of the Civil Law, arts. 123-124 (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 12, 1986, effective Jan. 1, 1987), LAWINFOCHINA (last visited Jan. 30, 2009). Article 123 of the GPCL states:

If any person causes damage to other people by engaging in operations that are greatly hazardous to the surroundings, such as operations conducted high aboveground, or those involving high pressure, high voltage, combustibles, explosives, highly toxic or radioactive substances or high-speed means of transport, he shall bear civil liability; however, if it can be proven that the damage was deliberately caused by the victim, he shall not bear civil liability.

Article 124 of the GPCL provides that “[a]ny person who pollutes the environment and causes damage to others in violation of state provisions for environmental protection and the prevention of pollution shall bear civil liability in accordance with the law.” 115. December 2008 Tort Law Draft, supra note 104, art. 67 (“The discharger of pollution shall bear the liability in case that the pollution causes damages to other persons, except existence of causes for the exemption from liability as provided by law.”). 116. Id. art. 39 (“The producer shall bear the liability in case that the product with defects causes damages to other persons, except that he can prove the existence of the following situation: (1) the products has not been commercialized; (2) inexistence of the defects at the moment of the commercialization of the product; (3) at the moment of its commercialization, the defects of the products cannot be found, limited by the technology.”). 117. RESTATEMENT (SECOND) OF TORTS § 402A (1965). Many books on the American Restatement of Torts have been translated into Chinese and become important reference works for the Chinese legislature and law scholars. For example, QIN QUAN FA CHONG SHU

DI SAN BAN [RESTATEMENT (THIRD) OF TORTS: PRODUCT LIABILITY] (Xiao Yongping, Jia Lefang & Wang Xue Fei trans., 2006); QING QUAN XING WEI FA CHONG SHU-GANGYAO [A

CONCISE RESTATEMENT OF TORTS] (Chuanyi trans., 2006). Also, VINCENT R. JOHNSON, STUDIES IN AMERICAN TORT LAW (1999), has been translated into Chinese. In China, many works on American tort law are also reprinted and published in English. See, e.g., EDWARD J. KIONKA, TORTS (Falu Press 1999) (1993).

2009] CHINESE CIVIL LAW 1029 shall be liable for the torts of wards under his guardianship and such liability can be alleviated if the guardian has performed his duties.118 It carries out the so-called “duty for the protection of transaction security” theory (Verkehrssicherungspflichen) in German law, stating that “the managers of hotels, restaurants, shops, banks and the entertainment facility shall be liable for the damages caused to the persons in such places, in case that they have not performed their duties for the protection of transaction security.”119 On the other hand, the draft also follows the famous theory of “vicarious liability” in American law, providing that “the units who hire the employees shall be liable for the damages caused by them during their work in officis”120 and “the medical institutes shall be liable for the compensation of the damages caused by their employed medical doctors in fault.”121 It is notable that the patient’s rights to know, which were introduced by American tort law and are composed of the right of informed consent and other rights to know in relation to medical treatment, are also protected and provided for in detail in the latest version of China’s draft on tort law. Article 55 of this draft provides:

The medical doctors shall inform a patient of his health condition and the eventual measure for the medical treatment, in the event that he conducts an ordinary clinic activity. In case of need of an operation and a special check-up or treatment, they shall obtain the patient’s related prior consent in writing after informing him of his health condition, medical treatment and its risk, as well as some alternative medical solutions. In the case that it is inappropriate to provide such information directly to the patient, the medical doctors shall inform it to his close relatives and obtain their prior consent in writing in relation with medical treatment. In case of negligence of the performance of such obligations and the damages therefore, the medical doctors shall be liable for the compensation of damages.

Attaching importance to the protection of patients’ rights, the drafters of China’s Tort Law dedicate chapter 7, with fourteen articles, to regulating torts in medical treatment or products.

118. December 2008 Tort Law Draft, supra note 104, art. 31. 119. See id. art. 35. 120. Id. art. 33. 121. Id. art. 54.

1030 TULANE LAW REVIEW [Vol. 83:999 H. The Current Debates on Tort Law

Even if this latest draft of China’s tort law is not yet disclosed to the public, Chinese civil law scholars are dedicating much of their research toward how best to draft it. The debates on tort law concern the following subjects.

1. On the Name and the Nature of Tort Law

The prevalent position asserts that tort law aims to regulate tort liability of wrongdoers and provide the relative remedies of compensation.122 Because the nature of tort law is that of liability, China’s future tort law should be denominated as “Tort Liability Law of PRC.” Such thought is accepted by the legislature in its latest draft, in which the tort law is called “Tort Liability Law.” However, some scholars think that tort law serves to protect civil rights, so its nature is that of remedy of right, and it therefore is more appropriate to call it “Tort Law” rather than “Tort Liability Law.”123

2. On How To Provide the General Clauses of Tort Law

The legislature and a majority of civil law scholars agree that China’s future tort law needs some general clauses on torts, similar to those provided by all civil codes in the continental countries. However, as to how to set forth the general tort clauses, there are many diverging views. Some scholars suggest that the general clauses should enumerate all types of civil rights or interests protected by law whose violation results in tort liability, thereby adopting the German precedent provided in BGB articles 823 and 826.124 In this way, it makes clear to

122. See Wang Liming, Lun Wo Guo Qing Quan Ze Ren Fa De Ti Xi Gou Jian [On the Construction of China’s Tort Liability System], 2008 ZHONG GUO FA XUE [CHINA LEGAL

SCI.] iss. 4, at 4. 123. See Zhu Wei, Qing Quan Ze Ren Fa Cao An Er Ci Shen Yi Gao Zhuan Jia Yan Tao Hui Zong Shu [Conference Report on the Second Version of the Tort Liability Law Draft], http://www.civillaw.com.cn/qqf/weizhang.asp?id=43175 (last visited Feb. 20, 2009). 124. Zhou Youjun, Lun Wo Guo Guo Cuo Qin Quan De Yi Ban Tiao Kuan [On the General Provisions of Tort with Fault in China’s Law], 2007 FA XUE YUE KAN [LEGAL SCI. MONTHLY] iss. 2, at 76; see BGB arts. 823, 826, available at http://www.gesetze-im-internet.de/englisch_bgb/. Article 823 of the BGB (Liability in Damages) states:

(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this. (2) The same duty is held by a person who commits a breach of a statute that is intended to protect another person. If, according to the contents of the statute, it may also be

2009] CHINESE CIVIL LAW 1031 all civil subjects what kinds of rights are protected by tort law. The precedent version of the last draft, namely the October 2008 version of the draft, accepted this idea.125 However, if following the 1986 GPCL’s example,126 other scholars are inclined to set forth only general clauses on “fault liability” without specifying the kind of civil rights or interests protected by tort law—namely, providing, in a general way, that a person who causes, intentionally or negligently, damage to other persons, shall be liable for compensation of the damages resulting from it.127 In addition to this general clause, China’s tort law must recognize “no-fault liability” as an exceptional case of “fault liability,” providing that when the statute calls for the assumption of liability for a person who is not at fault, he shall be liable for the damage. These kinds of general clauses (fault liability plus no-fault liability as an exception) are modeled on articles 1382 and 1383 in the French Civil Code,128 which provide only the fault liability principle. Article 7 of the latest version of the Tort Law Draft adopted this thought, providing that “those who cause damage to the body of another person or their property with fault, shall be liable for his tort.” In the case that as provided by law it is presumed that the

breached without fault, then liability to compensation only exists in the case of fault.

Article 826 of the BGB (Intentional Damage Contrary to Public Policy) states: “A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage.” 125. October 2008 Tort Law Draft, art. 2 (“A person who causes, intentionally or negligently, the damages by violating the following civil rights or interest, is liable to make compensation to the other party for the damage arising from this: (1) the personal rights, such as rights of life, health, denomination, portrait, privacy; (2) personal relationship right, such as guardian right, right to be maintained; (3) ownership, ius in re aliena, right of security for obligations; (4) intellectual property rights, such as copyright, patent, trademark right; (5) other kinds of civil rights and interests.”). 126. General Principles of the Civil Law, art. 106(2) (adopted by the Standing Comm. Nat’l People’s Cong., Apr. 12, 1986, effective Jan. 1, 1987), LAWINFOCHINA (last visited Jan. 30, 2009). GPCL article 106(2) provides that “[C]itizens and legal persons who through their fault encroach upon state or collective property, or the property or person of other people shall bear civil liability. Civil liability shall still be borne even in the absence of fault, if the law so stipulates.” 127. Wang Liming, Qing Quan Ze Ren Fa Zhi Ding Zhong De You Guan Wen Ti [Some Problems in the Drafting of the Tort Liability Law], 2008 DANG DAI FA XUE [CONTEMP. L. REV.] iss. 5, at 3; Zhang Xinbao, Qing Quan Xing Wei Fa De Yi Ban Tiao Kuan [General Clauses of Tort Law], 2004 FA XUE YAN JIU [CHINESE J. ON L.] iss. 1, at 50. 128. C. CIV., arts. 1382-1383 (Fr.), available at http://www.lexinter.net/ENGLISH/ index.htm (select “Civil Code”). Article 1382 of French Civil Code states, “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.” Article 1383 of French Civil Code states, “Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence.”

1032 TULANE LAW REVIEW [Vol. 83:999 wrongdoer has fault, he shall bear tort liability if he is unable to prove he has no fault. Opponents of this approach criticize that the French general clauses are outdated because they are not applicable to some special torts, such as those that result in strict liability and vicarious liability.129 The general clauses on torts in the GPCL are too abstract to be applied correctly in concrete cases unless the judges are well-trained. Because the legal training of today’s Chinese judges is not sufficient to guarantee the correct application of these general clauses, it seems reasonable to abandon these kinds of general clauses. As to the general clauses, more and more scholars have recently been advising the legislature to learn from article 2027 of the 1960 Civil Code of Ethiopia130 and article 1 of the 2005 Principles of European Tort Law131 and make the general clauses applicable to all types of torts.132 The general clauses on torts in the French Civil Code (arts. 1382 and 1383) are not applicable to the special torts, and those in the BGB (arts. 823 and 826) are inapplicable to remedies devoid of pecuniary damages. The general clauses on tort of both the 1960 Civil Code of Ethiopia (art. 2027) and of the 2005 Principles of European Tort Law (art. 1) are applicable to any kind of tort, exceeding the scope of similar provisions in both the French Civil Code and the BGB. Also, by enumerating some special types of torts, which facilitates the application of the general clauses to concrete cases, the 1960 Civil Code of Ethiopia and the 2005 Principles of European Tort Law sum

129. Zhou Youjun, supra note 124, at 76. 130. CIVIL CODE OF THE EMPIRE OF ETHIOPIA art. 2027. This article, titled “Sources of Extra-Contractual Liability,” states:

(1) Irrespective of any undertaking on his part, a person shall be liable for the damage he causes to another by an offence. (2) A person shall be liable, where the law so provides, for the damage he causes to another by an activity in which he engages or by an object he possesses. (3) A person shall be liable where a third party for whom he is answerable in law incurs a liability arising out of an offence or resulting from the law.

131. EUROPEAN GROUP ON TORT LAW, PRINCIPLES OF EUROPEAN TORT LAW: TEXT AND

COMMENTARY art. 1:101 (2005) (“(1) A person to whom damage to another is legally attributed is liable to compensate that damage. (2) Damage may be attributed in particular to the person: (a) whose conduct constituting fault has caused it; or (b) whose abnormally dangerous activity has caused it; or (c) whose auxiliary has caused it within the scope of his functions.”). 132. Zhang Xinbao, Qing Quan Li Fa Mo Shi—Quan Mian De Yi Ban Tiao Kuan Jia Quan Mian Lie Ju [Legislative Model on Tort Law—Complete General Clause Plus Complete Enumeration of Types of Tort], 2003 FA XUE JIA [JURISTS REV.] iss. 4, at 30; Yang Lixin, Lun Ai Sai Er Bi Ya Qing Quan Xing Wei Fa Dui Zhong Guo Qing Quan Xing Wei Fa De Yi Yi [On the Significance of Ethiopian Tort Law to Chinese Tort Law], 2005 YANG ZHOU

DA XUE BAO—REN WEN SHE HUI KE XUE BAN [J. YANG ZHOU UNIV. HUMAN. & SOC. SCI.] iss. 5, at 23.

2009] CHINESE CIVIL LAW 1033 up the merits of the general clauses in continental civil law as well as the merits of detailed typenzwang of torts in the common law. They are good legislative examples for the Chinese legislature.

3. On the Special Torts and Their Types

As mentioned above, the draft provided twelve types of special torts. However, the majority of civil law scholars think that this is not sufficient and it is necessary for the future of tort law to add the following special torts:

a. Tort Committed by the State

China promulgated its Law on State Compensation in 1994, but it is considered to be the worst Chinese statute in terms of its implementation. It is scheduled to be modified within a short time because it is currently difficult, if not impossible, for a private party to obtain judicial compensation from the state.133 Being administrative in nature, this law concentrates on the compensation of damages caused by the state’s administrative or judicial activities, although it almost completely ignores compensation for civil torts by the state. So far, in China, no private party has ever been compensated by the state for a civil tort. In this context, many scholars allege that it is appropriate and important for the legislature to set forth the tort committed by the state as a kind of special tort.134

b. Tort Resulting from Accomplishment of Friendship

How should tort law determine the liability of a person who conducts friendly activities (Gefälligkeit ) in favor of another and causes damages to the latter (for example, giving a lift in his car)? Currently, China’s law has not provided a clear solution, and the decisions made by the judges are not uniform. The prevalent doctrinal opinion draws from the experience of the continental law, and in particular from German law, asserting that a person who gives aid to another shall not be liable for the damages unless he causes the

133. Yuan Ting & Wang Qi, Guo Jia Pei Chang Fa Bei Zhi Shi Shi Zui Cha Fa Lü [The State Compensation Law Is Considered the Worst Law in Terms of Implementation] (Mar. 18, 2008), http://news.163.com/08/0318/15/47B0LULH00011SM9.html. 134. Jiang Ping, Retrospective and Prospective, supra note 39, at 8; Wang Liming, supra note 127, at 3.

1034 TULANE LAW REVIEW [Vol. 83:999 damages intentionally or with gross negligence.135 However, the latest draft has not provided for this kind of special tort.

c. Tort Resulting from a Labor Accident

In China, compensation for damages from personal injuries that a laborer suffers while on the job is covered by work-based insurance. Pursuant to the administrative Regulation on Work-Related Injury Insurance issued by the State Council on April 16, 2003, the compensation is calculated according to the degree of the incapacity caused by the accident, which shall be appraised by a specific commission on labor capacity.136 However, if the laborer has not suffered any personal injuries from the accident, the personal injuries are not so serious that he can be qualified as an invalid, or the insurance compensation paid according to the said administrative regulation is not enough to cover all the damages he suffered, how should he be compensated for damages resulting from a labor accident? Modern Chinese civil law has not offered a clear answer. In communis opinio, an employer shall be liable for damages that his employee suffers while conducting labor activities, even if the employer is not at fault.137 So this kind of tort liability should qualify as a special tort because the rule of its attribution is different from that applied to the normal torts.

d. Tort of Interference with Prospective Contractual Relations

In accordance with the provisions on interference with prospective contractual relations in section 766B of the American Restatement (Second) of Torts138 and the German institution “positive

135. Qiu Lufeng, Lun Qing Yi Xing Wei Ze Ren [On the Liability of Friendly Activities], 2008 NANJING DA XUE XUE BAO. ZHE XUE REN WEN SHE KE BAN [J. NANJING

UNIV. (PHIL., HUMAN. & SOC. SCI.)] iss. 5, at 45. 136. Regulation on Work-Related Injury Insurances (promulgated by the State Council, Apr. 16, 2003, effective Jan. 1, 2004), LAWINFOCHINA (last visited Jan. 30, 2009). 137. Zhang Xinbao, Gong Shang Bao Xian Pei Chang Qing Qiu Quan Yu Pu Tong Ren Sheng Pei Chang Qing Qiu Quan De Guang Xi [The Relationship Between the Right To Claim Labor Injury Insurance and the Right To Claim Common Personal Damage], 2007 ZHONG GUO FA XUE [CHINA LEGAL SCI.] iss. 2, at 100; Zhang Zhaodong, Gong Shang An Jian Pei Chang Qing Qiu Quan Jing He Wen Ti Yan Jiu [Study on the Concurrence Between Labor Injury Insurance and Personal Injury Compensation], 2007 HE BEI FA XUE [HE BEI

LEGAL SCI.] iss. 3, at 45; Jia Yuanyuan, Lun Gong Shang Bao Xian Ze Ren Jing He An Zhong Jiang De Mo Shi De Shi Yong [On the Application of Accumulation Model to the Cases on Labor Injuries Insurance], 2008 GUANG XI ZHENG FA GUANG LI GANG BU XUE

YUAN XUE BAO [J. GUANGXI ADMIN. CADRE INST. POL. & L.] iss. 3, at 28. 138. RESTATEMENT (SECOND) OF TORTS § 766B (1979).

2009] CHINESE CIVIL LAW 1035 Forderungsverletzung ” (positive damage to claim right), some scholars suggest the legislature provide “interference with contractual relations” as a special tort.139 This thought is agreed to by the majority of the civil law scholars.

e. Tort Committed by the Professional

The prevalent opinion among Chinese legal scholars is that all professional tort liability—not just medical tort liability as set out by the draft of tort law—should be determined by means of reversal of the burden of proving fault and the application of the so-called criterion of determination both “culpa in concreto” and “culpa in abstracto.” For this reason, the professional tort should qualify as a special tort in China’s tort law.

4. On Compensation for Damages

The provisions in the 1986 GPCL and the 2002 Civil Code Draft regarding compensation for damages are very simple. However, those set out in the judicial interpretations on torts140 are too complicated and there are many contradictions among them. How to quantify the compensation for damages and limit its ambit have been subjects of intense debate during the drafting of China’s Tort Law. The principal disagreements involve compensation for personal injury. In accordance with the Interpretation of the Supreme People’s Court of Some Issues Concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury (Dec. 26, 2003), compensation for personal injury is quantified according to the economic loss to the victim resulting from the tort. Consequently, in the case of multiple deaths caused by the same tort, the compensation to the rich is more than that to the poor. In a word, “human lives have different prices,” 139. See WANG LIMING & YAN LIXIN, QIN QUAN XING WEI FA [TORT LAW] 157 (1996); Yan Lixin, Xin Lei Xing Qin Quan Xing Wei Zhi Si: Qin Hai Zhai Quan De Qin Quan Xing Wei [The Fourth New Type of Tort: Interference with Prospective Contractual Relations], http://www.civillaw.com.cn/article/defautl.asp?id=43910 (last visited Apr. 8, 2009). 140. Opinions of the Supreme People’s Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law (Jan. 26, 1988), LAWINFOCHINA (last visited Jan. 30, 2009); Interpretation of the Supreme People’s Court on Several Issues About the Trial of Cases Concerning the Right of Reputation (July 14, 1998), LAWINFOCHINA (last visited Jan. 30, 2009); Interpretation of the Supreme People’s Court on Problems Regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts (Mar. 8, 2001), LAWINFOCHINA (last visited Jan. 30, 2009); Interpretation of the Supreme People’s Court of Some Issues Concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury (Dec. 26, 2003), LAWINFOCHINA (last visited Jan. 30, 2009).

1036 TULANE LAW REVIEW [Vol. 83:999 which, in the opinion of the public and some scholars, is contrary to the fundamental principle of constitutional and civil law that “the life and the personality right of every person is equal before the law.”141 Criticism of the Supreme Court’s 2003 solution on compensation for personal injury is becoming more and more severe. Recently, some scholars have tried to resolve this problem by introducing the concept of “biological damages” (danno biologico) from Italian law into Chinese tort law.142 According to this theory, permanent physical or psychological injury, called “biological damage,” is different from the pecuniary and nonpecuniary damages arising from the same tort. For persons of the same age and gender who have suffered the same biological damages, the compensation to them shall be the same and shall be calculated independently from pecuniary and nonpecuniary damages. In principle, the compensation for the different biological damages can be quantified objectively according to life insurance awards. In this sense, all lives are equal before the law. The other point of dispute in relation to personal injury concerns how to define and compensate for emotional damages. The Chinese legislature has not adopted the concept of “nonpecuniary damage,” but that of “emotional damage,” which refers to the mental suffering of a person caused directly or indirectly by a tort. Obviously, “emotional

141. See General Principles of the Civil Law, art. 3 (promulgated by the Nat’l People’s Cong., Apr. 12, 1986, effective Jan. 1, 1987), LAWINFOCHINA (last visited Jan. 30, 2009) (“Parties to a Civil Activities shall have equal status.”); XIAN FA [CONSTITUTION] art. 33 (1982) (P.R.C.) (“All citizens of the People’s Republic of China are equal before the Law.”). 142. See Zhang Lihong, Yi Da Li Fa Shang Sheng Wu Xue Zhi Sun Hai Ji Qi Dui Zhong Guo Qin Quan Xing Wei Fa De Qi Shi [Danno Biologico in Italian Law and Its Usefulness to Chinese Law], in QIN QUAN FA GAI GE GUO JI LUN TANG LUN WEN JI

[COLLECTION OF PAPERS FROM INTERNATIONAL FORUM ON REFORM OF TORT LAW (JUNE 13-14, 2008, SU ZHOU, CHINA)] 176 (June 2008). With regard to the concept of danno biologico in Italian Law, Professor Guido Alpa, one of the most prominent Italian experts on tort law, observed that

[t]he legal definition of “danno biologico” identifies the damage with the injury to the psycho-physical integrity of the individual—which can be valued from forensic medicine point view–whose restoration does not depend on the income-producing capacity of the injured party . . . . [T]he injury is therefore considered per se, as the fact causing damage to the legally protected interest of health, so that the expression danno biologico, subsumed in the legal formulation, is identified with expression (considered more correct by commentators) of health damage.

Guido Alpa, Personal Injury: Features of the Italian Legal System, in EUROPEAN TORT LAW: EASTERN AND WESTERN PERSPECTIVES 153, 170 (Mauro Bussani ed., 2007); see also GUIDO

ALPA & VINCENZO ZENO-ZENCOVICH, ITALIAN PRIVATE LAW 160 (2007) (discussing danno biologico in Italian law); BASIL MARKESINIS, MICHAEL COESTER, GUIDO ALPA & AUGUSTUS

ULLSTEIN, COMPENSATION FOR PERSONAL INJURY IN ENGLISH, GERMAN AND ITALIAN LAW 85 (2005).

2009] CHINESE CIVIL LAW 1037 damage” is a kind of nonpecuniary damage, but it is not the same as the latter. The Supreme Court in 2001 issued an ad hoc judicial interpretation on compensation for emotional damages.143 According to this interpretation, “emotional damage” can be compensated if it results from the infringement of a personality right (even the personality rights of a dead person), damage to a memento with a personal significance, the separation of a ward from his guardian, the destruction of a close family relation such as between a parent and child, or the death of a close relative.144 However, there are many other potential causes of so-called “emotional damage.” For example, it can be caused by the illness of a close relative that results from a tort. The civil law scholars have criticized the Supreme Court’s position that only the “emotional damages” provided in the judicial interpretations can be compensated. Instead, they argue that any mental suffering caused by a tort should be compensated. Recently, other scholars have alleged that “emotional damages” is not a legal term and should be replaced with the concept of “nonpecuniary damages” because it is impossible to quantify the damages resulting from mental suffering and compensate them separately from other kinds of damages, such as biological damages and pecuniary damages. Thus, they suggest classifying the damages into three types: pecuniary damages, biological damages, and nonpecuniary damages (which includes damages to personality rights and the irreversible detriment to or destruction of a person’s affection for another person or thing).145 Moreover, as a result of the strong common law influence on tort law, some advocate the compensation of pure economic loss in future Chinese tort law.146

5. On the Methods of Discharge of Tort Liability

Article 17 of the latest tort law draft provides eight main methods of discharging tort liability: (1) cessation of infringements,

143. Interpretation of the Supreme People’s Court on Problems Regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts (Mar. 8, 2001), LAWINFOCHINA (last visited Jan. 30, 2009). 144. Id. 145. See Zhang Lihong, supra note 142, at 176. 146. See LI HAO, CHUN JING JI SHANG SUN SHI PEI CHANG ZHI DU YANG JIU [STUDIES

ON PURE ECONOMIC LOSS] 12 (2007); Zhang Xinbao, Lun Chun Jing Ji De Ji Ge Ji Ben Wen Ti [On Some Fundamental Problems on the Pure Economic Loss], 2007 FA XUE ZA ZHI [LEGAL SCI. MAG.] iss. 4, at 43; see also PURE ECONOMIC LOSS IN EUROPE (Mauro Bussani & Vernon Valentine Palmer eds., 2003) (translated into Chinese by Zhang Xiaoyi & Zhong Hongming in 2005).

1038 TULANE LAW REVIEW [Vol. 83:999 (2) removal of obstacles, (3) elimination of dangers, (4) return of property, (5) restoration of original condition, (6) compensation for losses, (7) elimination of ill effects and rehabilitation of reputation, and (8) extension of apology.147 Shaping the extension of apology into a method of bearing the tort liability colors this draft with a distinctly Chinese style. Adopting the experience of the common law, many scholars affirm that it is useful and necessary to add the punitive penalty and the interim injunction in common law as methods of discharging tort liability.148 The debates also concern other subjects of tort theory, such as the necessity to qualify the violation of a law of conduct as one of the constructive elements of the attribution of tort liability, the criteria on the limitation of causation, and the determination of fault. Limited by the scope of this Article, I cannot address all of them on this occasion. At any rate, China’s future tort law, like all other civil special laws, is expected to be a mixture of the continental and common law experience of torts.

III. CONCLUSION

In conclusion, the fundamental concepts and principles of the Chinese civil law originate from the traditions of Roman law and the modern continental law, and sometimes they are mixed with Chinese traditional and/or socialist legal thoughts. The current norms of the Chinese civil law are derived from the promulgation of the 1986 General Principles of Civil Law as a framework for the interpretation of civil law, as well as from many special laws and judicial interpretations. Probably because of its flexibility, this legislative model of civil law is becoming a trend of modern civil law codification in the world. The codification of civil law is scheduled by the Chinese legislature in the following timetable: firstly, the enactment of many special civil laws, such as Contract Law, Real Right Law, Tort Law, and eventually a Law of Personality Rights and a Unified Law of Intellectual Property; secondly, the revision of the GPCL and its conversion into the general part of the civil code; and finally, the combination of the general part with the special civil laws. In 2007, China promulgated its Real Right Law and is currently drafting its Tort Law, which is scheduled to be enacted by 2010. In 147. 2008 Tort Law Draft, supra note 104, art. 17. 148. See Dong Xiaoming, Lun Zhi Shi Chan Quan Su Song Zhong De Lin Shi Jin Ling [On the Interim Injunction in the Lawsuit of Intellectual Property], 2008 FA LÜ SHI

YONG [APPLICATION L.] iss. 7, at 34.

2009] CHINESE CIVIL LAW 1039 drafting the GPCL and all the special civil laws—in particular, the 2007 Real Right Law and the Tort Law—the Chinese legislature adopted many legal institutions and concepts of the common law. As a result, the influence of the common law is becoming more and more noticeable in the Chinese civil law, as it is in the Louisiana Civil Code in the United States. Actually, China’s civil law is also a mixed jurisdiction, not only because of the great diffusion of the studies on the common law in China, but also because of the very special and important role of judicial interpretation in current legal practice. Today’s Chinese civil law is based on Roman law and Pandectenrecht. However, by incorporating the common law experiences in the drafting of its civil code, Chinese legal scholars and the legislature are trying to exceed them and build a new and modern codification model in the world, mixed with the common law experience.