Chinese Law, Influence of European Private Law

From Max-EuP 2012
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by Knut Benjamin Pißler

1. Chinese private law: historical roots and development

Chinese law has been codified since ancient times. In every dynasty a new code was promulgated, modelled on the code of the preceding dynasty. The code of the Tang-dynasty (618–907), dating back to the year 651, is the oldest preserved Chinese code and is seen as the zenith of legislative history in China. Substantive regulations found in later legislation only changed marginally from the Tang code. This is also true in respect of the Ming-Code of 1367, which was revised several times and finally promulgated under the name ‘Code of the Great Ming’ (Da Ming Lü) in 1397. It is established that a large portion of the articles in this code is borrowed from the code of the Tang-dynasty. The last pre-modern code in China, the ‘Code of the Great Qing with supplementary provisions’ (Da Qing Lü Li), which entered into force as from 1646 under the name ‘Codex of the Great Qing’ (Da Qing Lü) and was subsequently supplemented in 1740, is also structured after the Ming-Code and therefore also follows the code of the Tang-dynasty.

All these codes were by and large concerned only with criminal and administrative matters. If civil law matters were at issue, they were treated according to criminal principles (eg torts). Against this background, it is wrong to conclude that there was no codified law in pre-modern China. However, the existing Chinese law manifested itself as inadequate as the western powers gained more and more influence in China during the 19th and early 20th centuries. At that time, in the eyes of the Europeans Chinese law seemed to be atavistic and—due to its mainly criminal characteristic with draconian punishments—barbarian. Commercial trade with foreign countries made legal certainty a necessity, and western countries presumed that such an aim could only be accomplished by the reception of a European codification. Establishing such a codification finally became a requirement for China joining the circle of the ‘civilized nations’ and for abandoning the extraterritoriality assumed by the colonial powers in China on account of the so-called ‘unequal treaties’.

Besides this external pressure, however, there were also proponents for legal reform within the Qing-government. In the 28th year of the regency of Emperor GUANG Xu (1902), three high-ranking Mandarins filed a petition with the Emperor proposing a groundbreaking reform of the Chinese legal system, with the aim of enabling China to keep up with the developments in other countries.

When China began the codification of her private law at the dawn of the 20th century, a group of experts was sent to Europe, Japan and the United States for the purpose of studying the governmental and political institutions found there. Shortly before the collapse of the Qing dynasty in August 1911 a first draft of a Chinese civil code was completed with the assistance of Chinese academics who had studied law in Europe, Japan and the United States, and also with advice rendered by the two Japanese counsellors Matsuoka Yoshitada and Shida Kotaro. This draft, however, failed to enter into force. After the founding of the Republic of China the drafting work continued. Acting as foreign advisers were the former French counsellor of the Siamese government, G Padoux, two Japanese counsellors, Itakura Matsutaru and Iwata Shin, and—after 1921—the Frenchman Jean Escarra, then professor of commercial law at the law faculty of the University of Grenoble. In 1925/26 a second draft of a Chinese civil code emerged; however, the promulgation of the second draft failed due to internal power struggles in China. At the end of 1928 work on a codification restarted under the continuing guidance of G Padoux. The Civil Code of the Republic of China was finally promulgated and put into effect from 1929 to 1931.

The Civil Code of the Republic of China has several noteworthy characteristics. First, the drafts of 1911 and 1925/26 were taken as a basis for the code. Therefore, the civil code of the Republic of China may be seen as the culmination of efforts that had begun at the dawn of the 20th century. Secondly, Chinese translations of numerous foreign codifications were available for the drafters: reference is made to the Swiss Civil Code (ZGB) of 1912, the Swiss Code of Obligations (OR) of 1881/1911, the Russian Civil Code of 1922, the Japanese Civil Code (1898) and Commercial Code (1890), the Turkish law of obligations and commercial law (1926) (Turkish Civil Code and the Turkish Code of Obligations), the Siamese Civil and Commercial Code of 1923/25, the Italian draft of a commercial code, the Brazilian Civil Code of 1916 and the French-Italian draft of a common law of obligations of 1927. However, the Bürgerliches Gesetzbuch in particular is presumed to have had a prevailing influence on the codification in China. Scholars such as Karl Bünger (1934–41, research associate for East Asia at the Kaiser Wilhelm Institute for Foreign and International Private Law) assumed that this influence derived from the brief existence of the German law faculty in Qingdao, the major city in the bay of Jiaozhou which was ceded to Germany in 1898. The German law faculty in Qingdao had certainly promoted the German legal system.

After the communists gained power on mainland China in 1949 the civil code was abolished. Between 1949 and 1978 legislation in the People’s Republic of China was primarily concerned with social reform and securing the authority of the Communist Party. With the economic recovery, started after the introduction of the policy of ‘reform and opening’ by Deng Xiaoping at the end of 1978, legal certainty and, consequently, the promulgation of new laws became necessary.

Currently, Chinese civil law consists of various laws which, taken as a whole, contain regulations covering almost every matter. In 1986 the ‘General Principles of Civil Law’ were adopted, resembling to a certain extent a general part of a civil code, but also containing provisions concerning legal persons, the law of obligations, property law, torts and international private law. In March 1999 the ‘Contract Law of the People’s Republic of China’ was promulgated. It contains 428 articles and constitutes the most comprehensive legislative work in the People’s Republic of China to date. Its enactment has been seen as a major step in Chinese legislation. Besides basic rules on obligations in a general part, the contract law provisions include a special part identifying 15 types of contracts. In March 2007 a property law was promulgated after intense and mostly ideological discussions. Regulations on family, adoption and succession are found in separate legislative provisions which were, in part, recently revised.

Revision of the law of torts and the international private law regime contained in the ‘General Principles of Civil Law’ has been completed in 2010. The plan is to amalgamate these revised laws with other laws already promulgated and a general part still to be drafted in a civil code of the People’s Republic of China.

2. Counselling for the Chinese legislature

As shown above, the Chinese legislature, as early as the end of the Qing-dynasty, employed foreign counsellors in order to gather information on prospective legislative models found in other countries. This counselling continued after the founding of the People’s Republic of China. First, there were counsellors from the former Soviet Union, which guided the Chinese government in building up socialist law. After the introduction of the policy of ‘reform and opening’ in 1978, legislative counsellors came from various national and international organizations like the World Bank, the Asian Development Bank, the German Gesellschaft für technische Zusammenarbeit and numerous US institutions.

It is to be observed that foreign counsellors are not directly involved in the drafting of new Chinese legislation which is later adopted by the Chinese legislature. The role of the counsellors is restricted to delivering suggestions and ideas. The Chinese legislature emphasizes its autonomy in Chinese legislation with the consequence that it refrains from specifying which foreign pattern it has given preference. Furthermore, as numerous organizations are involved in counselling the Chinese legislature, it is difficult to evaluate the success of counsellors or to even determine in a specific case the foreign model of the final legal instrument adopted in China. Conclusions might be drawn from legislative materials which the Chinese legislature now publishes after promulgating a new law. These materials partly contain translations of foreign codifications which were considered in the drafting process. It has become more and more common in Chinese academic writings to explain Chinese legal instruments from a comparative perspective by using foreign models. This too offers a certain degree of insight.

3. Examples of influence of foreign legislation

After the enactment of the Chinese ‘contract law’ in 1999, fairly comprehensive legislative materials, which were available to the legislature during the drafting process, were published for the first time. An example is a book edited by the Civil Law Bureau of the Legislative Affairs Commission of the National People’s Congress. After each article of the ‘contract law’ it quotes foreign legislation which was taken into consideration in the drafting of the law. Reference is made—often initially—to the German Bürgerliches Gesetzbuch (BGB), to the French Code civil, and to the Italian Codice civile, but also to the Japanese and Taiwanese Civil Code as well as the UCC of the United States. Regarding international uniform law there are quotations from the CISG (sale of goods, international (uniform law)) and the UNIDROIT PICC. However, the book does not contain references to the Principles of European Contract Law (PECL), for which a first Chinese translation was published in 1999. This might be due to the fact that the drafting on the ‘contract law’ started as early as 1993 and a first draft of the law was already available in 1995.

Although there exists no comprehensive study on the question of which foreign patterns the Chinese legislature was following in each article of the ‘contract law’, it can be determined that the law is not modelled after one single foreign model. Instead the ‘contract law’ comprises individual rules which were found in several foreign jurisdictions. As far as international uniform law was available, the Chinese legislature often followed this pattern. One reason for this is that uniform law appears to be the most modern pattern. Another reason might be that the choice of uniform law avoids turf wars among Chinese legal academics who have respectively studied in different foreign jurisdictions and often advocate adopting the approach of that country.

The Chinese ‘property law’ of 2007 shows a clear influence of the continental-European legal systems, above all in the discussions of specific legal institutes. In Chinese academic circles the question was extensively debated whether the transfer of ownership in Chinese ‘property law’ should follow the German approach of distinguishing between the underlying contract (eg a sales contract) and an additional ‘real agreement’ transferring property to the buyer or, alternatively, the French approach where property passes from the transferor to the transferee by virtue of any contract between those parties implying such transfer of property. The legislature finally decided to incorporate an approach which builds on the French principle of consent but adds as a second requirement the delivery or transfer of possession. This approach was already taken (apparently influenced by the civil code of the former German Democratic Republic) in the ‘General Principles of Civil Law’ of 1986. China is therefore following a middle course originating in Roman law, which demanded titulus and modus and is to be found in several European countries such as the Netherlands, Spain and Greece.

4. Influence of European law on Chinese legal academics

The influence of European law on Chinese legal academics is also noticeable. This influence becomes apparent in the Chinese textbooks when in a comparative introduction to a specific legal institute in Chinese law reference is made to corresponding regulations in German, French or Italian law and—in more recently published textbooks—to patterns in uniform law as well.

It is also worth noting that the genre of legal commentary is gradually developing within the legal system of the People’s Republic of China. However, citation and especially reference to court decisions are not (yet) common. It remains to be seen in the future, therefore, whether there will be citations of foreign court decisions (eg from courts of the European Member States) in Chinese commentaries (as, eg, is the case with German court decisions in commentaries found in the Republic of Korea).


Karl Bünger, ‘Das neue chinesische BGB—Seine Entstehungsgeschichte und Systematik’ [1931] Blätter für Internationales Privatrecht columns 258; Ping-Sheung Foo, ‘Introduction’ in Ching-Lin Hsia, James LE Chow, Liu Chieh, Yukon Chang (trans), The Civil Code of the Republic of China, vols I-V (1931); Karl Bünger, Zivil- und Handelsgesetzbuch sowie Wechsel- und Scheckgesetz von China (1934); Jean Escarra, Le droit Chinois (1936); Ulrich Manthe, ‘Bürgerliches Recht und Bürgerliches Gesetzbuch in der Volksrepublik China’ (1987) 28 Jahrbuch für Ostrecht 11; Robert Heuser, Einführung in die chinesische Rechtskultur (2nd edn, 2002); Dahan Huang, ‘The UNIDROIT Principles and their Influence in the Modernisation of Contract Law in the People’s Republic of China’ [2003] Uniform Law Review 107; Xiaoyan Baumann, Das neue chinesische Sachenrecht (2006); Oliver Simon, Bericht der chinesischen Studienkommission aus dem Jahr 1906 über ihren Besuch in Deutschland [2006] Zeitschrift für Chinesisches Recht 77; Hinrich Julius and Gebhard M Rehm, ‘Das chinesische Sachenrechtsgesetz tritt in Kraft’ (2007) 106 Zeitschrift für vergleichende Rechtswissenschaft 367; Hinrich Julius, ‘Institutionalisierte rechtliche Zusammenarbeit: Die Erfahrung der GTZ in China’ (2008) 72 RabelsZ 55.

Retrieved from Chinese Law, Influence of European Private Law – Max-EuP 2012 on 18 June 2024.

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