Steps Toward New Civil Code Bring Skepticism, Debate
This year’s gathering of the Two Sessions in Beijing brought early steps towards the long-awaited goal of a unified civil code, legally enshrining a huge range of citizens’ rights and responsibilities. The current effort, which follows unsuccessful attempts in 1954, 1962, 1979, and 2001, is due for completion by 2020. A set of guiding principles has been discussed in recent days by the legislative National People’s Congress and advisory Chinese People’s Political Consultative Conference, following three readings by the NPC’s Standing Committee last year. From Cao Yin at China Daily:
The code would unify laws related to non-criminal and non-administrative areas of the legal framework under a single piece of legislation.
[… Sun Xianzhong, an NPC deputy and research fellow at the Chinese Academy of Social Sciences’ law institute] is hopeful that the current two sessions will signal another step forward. “Our country has a number of laws to protect people’s civil rights, such as those related to property and contracts, but there is no unified legislation to integrate them. Also, some older laws need to be revised,” he said.
“There are two steps, and the first is the draft currently under discussion, which aims to clarify general civil rights, duties and principles. These general provisions are difficult to draft, because they will guide the parts that follow.”
The second step will involve special provisions, such as enacting new laws and amending a number of existing pieces of legislation related to specific activities and industrial sectors. [Source]
The draft preamble covers topics from privacy and virtual property rights to protections for the elderly, “left behind” children, and “Good Samaritans.” It even, according to a Tsinghua law professor quoted by China Daily, promises to eradicate excessive mooncake packaging. At The Wall Street Journal, however, Josh Chin reports some skepticism about the new code’s effectiveness:
Steve Dickinson, an attorney at Seattle-based law firm Harris Bricken who worked for years in China, said that some of the world’s most influential civil codes were adopted by autocrats: France’s was put in place by Napoleon, Germany’s by Otto von Bismarck and Japan’s under the Meiji emperor.
“Civil codes tend to be gifts to the people from brutal dictators,” Mr. Dickinson said. “A government can write in a code that citizens have certain rights. If they cannot exercise those rights, who cares what is written?”
[… The promise of “fair, reasonable compensation” in property disputes] will be difficult to interpret, likely leaving the problem unresolved, said Yu-Jie Chen, a legal expert and visiting scholar at Columbia University’s Weatherhead East Asian Institute.
Civil code aside, plaintiffs remain at a disadvantage, according to Ms. Chen, since lawyers are sometimes jailed and intimidated for fighting for their client’s property rights. “As long as China doesn’t allow the legal profession to robustly represent their clients to fight for ‘fair and reasonable’ compensation, how this legal change is going to help the evictee remains a mystery to me,” she said. [Source]
Read more on recent reprisals against lawyers via CDT.
China’s own constitution offers examples of rights that have failed to translate from paper to reality, as Reuters’ Christian Shepherd noted on Tuesday. He also described disagreement over the new code’s handling of “personality rights”:
Health, reputation, image, name and freedom are included, but the term is significantly narrower and de-politicized compared to human rights, according to Chinese academics.
Proponents of individual rights have called for a dedicated section of the code, while others worry granting too many private rights could lead to revolution.
[…] “First, the list of rights is incomplete; second, the number of rights is insufficient; third, the civil rights system is curtailed,” [National People’s Legal Association deputy chairman Xu Xianming] wrote last year in an essay for the official magazine of China’s parliament.
As China’s constitution cannot be cited in court, rights must be passed by parliament before can they be protected, Xu argued.
China’s constitution on paper promises freedom of speech, freedom of the press and freedom of assembly among others. In practice, however, such provisions are not considered legally actionable and the party’s right to govern as it sees fit takes precedent. [Source]
“The hardest and most difficult part of the (civil code) compilation is handling everyone’s suggestions,” said Zhang Rongshun, deputy head of the NPC’s legal advisory body, adding that they had received over 70,000 recommendations during the preamble drafting.
“The basic principles are easier, relatively speaking, but in the future (the law) will touch on all sorts of different things and there will be more suggestions,” Zhang said, speaking at a press conference on the general rules of the code.
China’s laws go through a public consultation process, where early drafts are released to the public for comment.
The volume of public input does not necessarily mean more changes to the final provisions, but fierce pushback on issues like property rights has in the past delayed laws from being passed on time. [Source]
For more on the public consultation process, see CDT’s Q&A with George Washington University’s Steven Balla.