Mixed Fears for Rights Protection in New Civil Code
On Wednesday, the National People’s Congress took a step towards the creation of China’s first unified civil code. The project, due to be completed in 2020, has stirred fears in some quarters that individual rights will be inadequately protected, and in others that they may be dangerously indulged. From Xinhua:
The General Provisions were adopted at the closing meeting of the annual session of the National People’s Congress (NPC), with 2,782 of the 2,838 deputies present voting in favor. It takes effect on Oct. 1 this year.
Compiling a civil code, a decision made by the central leadership in 2014, has been deemed as a “must-do” to promote the country’s rule of law and modernize state governance, and as a crucial move in building China into a moderately prosperous society by 2020.
[…] “With the General Provisions, 1.3 billion Chinese will feel more secure and enjoy more equal opportunities and dignity,” said Sun Xianzhong, a national lawmaker and deputy head of the China Civil Law Society.
[…] Last year, the draft went through three readings at the bi-monthly sessions of the NPC Standing Committee. Public opinions were solicited multiple times and symposia held to gather suggestions. More than 70,000 opinions were collected. [Source]
For more on the public consultation process in general, see CDT’s Q&A with George Washington University’s Steven Balla.
The Economist provides some background on the current undertaking:
China has a civil-law system, which means that statutes are essential reference for judges. (In common-law countries such as Britain and America, verdicts are also decided according to precedent: ie, previous rulings by courts.) But under Communist rule, China has muddled through without a unified civil code. It has bits of one. It passed an inheritance law in 1985, a contract law in 1999 and a property law in 2007. But there are big gaps and inconsistencies. The Supreme People’s Court, the highest judicial authority, issues directives in an attempt to sort these out.
The country has been trying to write a civil code since 1954. But China’s then ruler, Mao Zedong, was lukewarm about it—he did not want any law that might restrict his power. China’s current leaders are far keener to have one. They hope it will provide a stable legal framework for a rapidly evolving society racked by increasingly complex disputes. In 2014 they decided to try again, aiming to write one by 2020. This week’s approval of the code’s general principles is the first fruit. It covers everything from individual rights and the statute of limitations to whether fetuses can own property (they can).
[…] A civil code—embracing laws of property, contract, inheritance, family and marriage—will not guarantee fairness. The Communist Party will continue to ignore the law when it wants to. But for all the legal system’s flaws, many people still use it. The code may make it less opaque and outdated, and judges’ lives easier. [Source]
NYU law professor Jerome Cohen offers a similarly mixed assessment on his blog. He acknowledges that a new code would be an “important step” in China’s legal, economic, and social development.
Yet those who say it is window dressing are also correct because, while all this drafting, enacting and implementing of civil law-related subjects has been going on, aspirations toward what is popularly understood to be the “rule of law” have obviously been frustrated by Xi Jinping’s increasing oppression of political and civil rights and the arbitrary actions of a police state that has returned fear to the daily lives of many Chinese. The most fundamental aspect of the rule of law is protection against arbitrary detention and imprisonment and other official actions that restrict basic personal freedoms. Here, despite some legislative progress in this area, is where the current regime has ostentatiously failed to respect the rule of law in practice.
Many courageous legal reformers in China today, unable to combat the severe repression, have focused their energies on drafting better pieces of paper – legal rules – especially in the civil area where it has been possible to make progress in practice. […] [Source]
At The Wall Street Journal, Josh Chin focuses on one clause that has sparked particular concern: one that makes damage to “the name, likeness, reputation or glory of heroes and martyrs” a civil offense. Its inclusion follows a series of steps to enforce the Party’s version of history and combat the so-called “historical nihilism” that challenges it: the takeover of traditionally liberal journal Yanhuang Chunqiu last summer; court decisions against its former editor, Hong Zhenkuai, for questioning details of a legendary act of revolutionary heroism, and blogger Sun Jie or Zuoyeben for mocking the deaths of two other Communist martyrs; and the imprisonment of two men for distributing books including “How The Red Sun Rose,” an uncomplimentary account of the Party’s rise to power.
Calling the new clause “unacceptable,” Peking University legal scholar He Weifang argued Monday that there was no accepted legal standard for deciding who qualifies as a hero. He also noted that doubts over the historical reliability of some of China’s martyr stories were widespread.
“To uncover the true face of history in the spirit of seeking truth from facts, but to instead face accusations of malicious slander, that is horrifying,” Mr. He wrote in a social-media post, whose authenticity he later verified to China Real Time. “Real gold fears no fire, true martyrs have no need to worry about ‘being smeared.’ All their defenders need to do is present definitive evidence to back their claims. What are they afraid of?”
[… Hong Zhenkuai] wrote an open letter to NPC delegates on the WeChat messaging platform on Sunday night, protesting inclusion of the Langya Mountain in the courts’ report. The letter was removed by censors within an hour, he said.
“In the future, historical research will be impossible,” he said. “If you point out the contradictions or holes in what they say, they can use the law to proclaim you guilty.” [Source]
One less controversial provision offers new protections for “Good Samaritans.” From Catherine Lai at Hong Kong Free Press:
After deliberation on Tuesday afternoon, lawmakers changed the Good Samaritan article in the draft provisions, removing a caveat that allows those who accidentally cause injury while helping strangers in an emergency to be held liable for damages, according to Communist Youth League paper China Youth Daily.
“Those who willingly take action in an emergency to save or help others, causing harm to the victim, will not bear civil liability,” the provision now says.
[…] There has been a long-running debate over the need for a Good Samaritan law in China. In a notable 2011 case that horrified the world, a two-year old child, Wang Yue, was run over by two separate trucks as more than a dozen people passed by without helping. She was finally rescued by an elderly garbage collector but died a few days later.
Onlookers are often reluctant to help, partially as a result of the lack of legal protection and cases of extortion by injured parties or some pretending to be injured. [Source]
Read more on these cases via CDT.
As previous coverage has noted, the final code’s formulation is expected to be a long and contentious process. At The New York Times, Javier C. Hernández and Owen Guo report that while some critics fear that the code will erode or fail to protect individual rights, others are unconcerned, or are pulling in precisely the opposite direction:
China’s government often tries to present the image of a unified and efficient bureaucracy marching in step. But the struggle over the civil code is a reminder that it remains divided on a range of ideological and policy issues, complicating the leadership’s efforts to meet rising public expectations.
[…] One prominent legal scholar, Liang Huixing of the Chinese Academy of Social Sciences in Beijing, has raised the possibility of revolution if China were to guarantee expansive personal freedoms like property rights and free speech in the civil code, as some lawmakers and scholars have suggested. He has drawn comparisons to the 2014 uprising in Ukraine, warning of the threat posed by “unchecked freedom.” [This has also been a frequent reference point in a recent series of videos accusing the West of trying to foment unrest in China, which have been shared by several officially-linked social media accounts.]
Zhou Guangquan, a lawmaker and a professor at Tsinghua University in Beijing, dismissed concerns that the government was not interested in protecting individual rights. He said it was essential to update China’s civil law, which has its roots in German law and was last significantly revised in the 1980s, before economic and social transformations.
“There are a lot of overlaps and contradictions,” Mr. Zhou wrote in an email. “The passing of civil code will erase these problems.” [Source]