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Civil Code marks milestone in Chinese legal system

Author  :  WANG LEI     Source  :    Chinese Social Sciences Today     2020-06-30

China has just adopted its long-awaited Civil Code, which was passed in the Two Sessions that recently concluded. The law will take effect on Jan. 1, 2021. 

With the principle that “the well-being of the people is the highest law,” the fundamental tenet and original intention of the Civil Code is the concept of humanistic concern and the spirit of freedom. The law is mutable but the legal principle is abiding. Seeking the origins of the Civil Code and tracing its original intentions can help us maintain a peaceful mind amidst today’s complex and changeable times.

The law governs almost all civil activities of an individual and is closely related with one’s daily life. Montesquieu once said that in the eyes of the civil law, each person is the whole nation. Within the Civil Code, people themselves are the ultimate target. By respecting people’s dignity and caring for personal development, it relieves people’s chagrin and sorrow and brings them joy and happiness. In adjusting relationships, the Civil Code puts personal relationships before property relationships in its stipulations. It also makes human rights law an independent chapter. The priority of civil rights system, human right is mainly to safeguard human dignity and promote the all-around development of human beings. Moreover, the right of residence and the original renter’s priority to lease are helpful in meeting people’s diverse housing needs, reflecting the code’s people-centered focus on adjusting property relationships. 

How the vulnerable groups of society are respected and how their rights are ensured can reveal the level of a country’s legal civilization. The chapter General Provisions of the Civil Code emphasizes the special and preferential protection of the civil rights of juveniles, the elderly, the disabled, women and consumers. The chapter Marriage and Family further emphasizes the protection of the legitimate rights and interests of women, juveniles and the elderly, emphasizing that family members should respect the elderly, love the young, help each other, and give special care to vulnerable groups in marriage and family life.

The Civil Code’s humanistic concern extends to the fetus and it protects the fetus’s interest of inheritance, the right to accept donated property, and the right to accept compensation for violated rights. This embodies the concept of rule of law that respects the equality of life. The Civil Code lowers the prescribed minimum age which limits the individual’s civil capability to better respect the juvenile’s self-consciousness and increase their self-determination of opportunities. The Civil Code also stipulates that when a guardian is temporarily unable to perform duties of guardianship due to an emergency, the residents’ committee, the villagers’ committee or the local civil affairs department shall arrange necessary temporary care for those under guardianship. It is also stipulated for the first time that in determining the direct caregiver of the juvenile dependent at the time of divorce, the true willingness of the juvenile dependent over eight years old must be taken into account. The adoption of juveniles over eight years old must also obtain the consent from the adoptee. 

While ensuring that the elderly have a house to peacefully live in, the right of residence in the Civil Code enables the elderly to enjoy the exchange value of houses in advance. In fully utilizing the utility of houses, this provides a legal guarantee for the elderly’s house-for-pension program (reverse mortgage loan). According to the code, the adult children have dual obligations of nursing the aging parents and offering both financial and psychological support.

The Civil Code respects the civil subjects’ autonomy and agency to engage in civil activities and fully protects personal freedom and human dignity. What corresponds with the principle of agency in the daily law is the proverb that “the absence of legal prohibition means freedom,” which is how freedom in the socialist core values is expressed from the perspective of civil law. The key to understanding it is to define the scope of “law” in an appropriate way. The word “law” includes both the specific legal rules and the basic principles of the law, as well as the social norms and public orders that should not be violated. The freedom of the civil subject shall not be at the expense of the lawful civil rights and interests of others, nor at the expense of the interests of the state or the public interest. 

The civil subject’s autonomy and agency guaranteed by the Civil Code is not absolute, and it must be restricted by the principle of good faith, public orders, social norms, etc. In addition to the free development of individuals, it is important to realize interpersonal love and mutual care, the free development of groups and intergenerational justice. A good heart is the best law.


Wang Lei is associate professor from the Civil, Commercial and Economic Law School at the China University of Political Science and Law.


(Edited and translated by BAI LE)

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