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Civil legislation includes protections for basic rights

Author  :  Wang Liming     Source  :    Chinese Social Sciences Today     2017-05-04

The General Provisions of Civil Law were passed by the National People’s Congress, the nation’s top legislature, last month and will be enacted on Oct. 1 this year.

Discussion of the provisions during the “Two Sessions” has set off debate throughout Chinese society. Serving as a set of guiding principles for China’s ongoing compilation of the Civil Code, the draft general provisions are a milestone of the nation’s legislative progress in civil affairs.

All future legislation on civil affairs and business will follow these guidelines, encouraging systematic legislation on civil affairs. It is particularly noteworthy that the draft establishes a holistic system of civil rights, strengthening protection on private rights. Therefore, it can be called “a declaration of civil rights.”

The major functions of the law are to affirm, distribute and safeguard rights, and the value of law is to protect private rights and restrict public power. The provisions also pave the way for legislation on specific provisions of the future Civil Code, which includes property law, creditor’s rights, kinship, succession, personality rights and tort liability. The provisions systematically and comprehensively affirm and protect civil rights, encouraging autonomy in private law and ensuring the protection of personal dignity and value.

The provisions reflect the realities of contemporary China and respond to the practical demands of our era. For example, the right to privacy is asserted for the first time in this law. Measures to safeguard personal information have been added in response to the increasing misuse of personal information brought by the Internet and Big Data.

Asserting protection of personal information as a new civil right reflects respects for personal dignity and basic human rights. It will curb such activities as “human flesh search,” a practice known in the West as “doxing,” as well as illegal intrusion into personal network accounts and trading personal information. In addition, the provisions also specify what falls under the purview of intellectual property rights, expanding the scope of protection of intellectual property rights.

Equality and openness constitute the spirit of age that the provisions reflect. From the perspective of property rights, the provisions for the first time use the word “equal,” greatly enhancing property laws. Article 4 of the Property Law of China states “The property rights of the state, collective, individual or any other rights holder shall be protected by law and may not be damaged by any entity or individual.” The new General Provisions further state that “the property right of all civil subjects shall be equally protected by law,” demonstrating the value orientation of “equal property right” in civil law.

Openness is seen in the preservation of space for future protection of new types of civil rights. The provisions confirm that civil subjects also enjoy other civil rights and interests.

With the advent of the Internet and Big Data, we have entered an information society. Data development and exploitation has become a significant part of technological innovation as well as an important property asset. The provisions establish protections for data and online virtual assets, responding to social changes and the needs of social development. In addition, the new law clarifies prohibitions against the abuse of rights, which is also for the first time specified in China’s civil law.

In the future, specific provisions of China’s Civil Code will follow after the enactment of the new General Provisions. I hope that the future Civil Code will further strengthen protection over personality rights, which refer to the rights to control one’s name, image, likeness, or other unequivocal aspects of one’s identity, making laws of personality an independent division in Civil Code. In addition to further regulating and improving protections over rights such as life, health, reputation, portraiture, marriage by choice, name of both individual and entity as well as other rights specified in previous General Principles, the Civil Code should pay more attention to rights of privacy and personal information as well as rules protecting personality rights in the context of Internet. In this way, the new Civil Code will not only conform to the development trends of modern civil law and safeguard personality rights but also strengthen protection over human rights. These further changes will improve the existing system and expand the humanitarianism of civil laws.

 

Wang Liming is executive vice-president of Renmin University of China and vice-chairman of China Law Society.

Editor: Yu Hui

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