Civil Code vital to building a moderately prosperous society

By RAN KEPING and TANG ZUOCAI / 09-23-2020 / (Chinese Social Sciences Today)

The Chinese edition of the Civil Code of the People’s Republic of China Photo: FILE

For China, 2020 is a historic year. The country is on track to complete the building of a xiaokang, or a moderately prosperous society in all respects. Dubbed as an “encyclopedia for social life,” the Civil Code, which was adopted on May 28, 2020, and which shall come into force on Jan. 1, 2021, will play an irreplaceable role in the great course of achieving a xiaokang society. 
The Civil Code includes basic law for a socialist market economy, important codes of conduct for people’s lives, and an essential legal basis for trials on civil and commercial cases, occupying a significant position in the national legal system. Not only is it able to regulate the market order and boost the market economy, but it also prescribes well-rounded types of civil rights and civil right protection systems. Most importantly, it reflects humanistic concern and the spirit of this era while underscoring the protection of personalities, which is highly conducive to enriching the spiritual life of the general public. 
In this critical stage of attaining the xiaokang target, the Civil Code will effectively consolidate results achieved in the process of building a moderately prosperous society in all respects, while injecting new blood into the xiaokang society. 
Promoting market economy
The term xiaokang originated from the Book of Songs back in the 7th century BCE. In the Greater Odes chapter of the book, a line reads: “Min yi lao zhi, qi ke xiao kang,” which means ordinary people have toiled too much, and they wish for a comfortable life. 
The major goal of xiaokang is economic and social development. As a basic law for market economy, the Civil Code must assume the tasks of advancing market economies and regulating the market trade order. 
Specifically, the Civil Code clarifies extensive personal and property rights for civil subjects based on such principles as equality, free will, good faith, public order and good morals. 
As it was pointed out in the Fourth Plenary Session of the 18th CPC Central Committee, the socialist market economy is in itself a law-based economy, so the development of a market economy is inseparable from the rule of law. 
The principles of freedom and equality provided by the Civil Code will help straighten out the relationship between national public power and the market economy, making the market the real decisive factor in resource allocation. 
According to Article 187 of the Civil Code, where a party to civil legal relations shall be held civilly, administratively, and criminally liable for the same act, the assumption of administrative liability or criminal liability does not affect the assumption of civil liability; and if the party’s property is insufficient for payment, the property shall be used first for the assumption of civil liability.
The precedence of civil liability over criminal and administrative responsibilities is a concrete manifestation of the people-centered principle of the Civil Code
Institutionally, development of the market economy necessitates full institutional supply. To this end, the Civil Code makes innovations in the trading system with certain regulations. 
First, it sets new trading rules. In order to optimize the business environment, the Civil Code innovates with new legal systems on movable personal property and the guarantee of related rights. It incorporates non-typical forms of guarantee, such as retention of title, financial leasing contracts and factoring contracts into the scope of movable property and rights guarantee, while providing institutional space for integrating the registration of movable property and related rights, thus establishing a unified movable and right guarantee system. Moreover, it improves the chattel mortgage system, ensuring the “highest priority for chattel mortgage” and widens the range of application for the defense of legitimate business activities regarding chattel mortgage, which will be helpful to maintaining the market trade order.  
Next, the rights relief system is perfected. The Civil Code newly stipulates punitive damages for intellectual property infringement and environmental pollution and destruction, further completing the punitive damage system in Chinese civil law.
In addition, the Civil Code absorbs rules established by trade practices. It expressly defines the contracts of partnership, factoring and property management services as typical contracts, providing a legal basis for the settlement of pertinent disputes. For example, the factoring contract will facilitate the healthy development of factoring businesses, easing such problems facing small and medium-sized enterprises as high difficulties and costs regarding financing, thereby accelerating the development of China’s real economy. The property management service contract is not only favorable to safeguarding the rights of the majority of property owners but also vital to the sound development of the property management service industry. 
Safeguarding civil rights
To achieve the building of a moderately prosperous society in all respects, it is necessary to safeguard people’s rights and interests and enhance their sense of acquisition, happiness and security. In this regard, the Civil Code is exactly a “manifesto of civil rights,” serving as a fundamental basis for the protection of citizens’ private rights. 
Consisting of 1,260 articles, the whole Civil Code centers on the types and content of civil rights, how civil subjects should exercise their rights, and how to remedy civil rights violations. 
The Civil Code is quite innovative in the protection of civil rights, mainly embodied in the comprehensive protection of personality rights. In China’s Civil Code, personality rights have a much more expansive definition, one rooted in civil rights. It details the content of the rights of life, inviolability and integrity of person, health, name (for natural persons and legal persons or unincorporated organizations), portrait, reputation, honor, privacy and personal information, along with tort composition, consequences, and methods of right relief. In the code, personality rights are protected in a “positive plus negative” model. Throughout the document, the respect for personality freedom and personal dignity is highlighted. It keeps abreast of the times and of demands arising from advances in science and technology, meets the requirement of safeguarding the personal, property and personality rights of the people put forward in the 19th CPC National Congress, and lifts the protection of personality rights in China to an unprecedented height. 
Furthermore, the General Provisions, the first part of the Civil Code, improves the guardianship system at greater length, intensifying the protection of minors. In addition, the Real Rights, the second part, creates the right to housing for such vulnerable groups as seniors, divorced women and children. The Marriage and Family section specifies basic principles for protecting women, minors, seniors and the disabled. 
Enriching people’s spiritual life
The xiaokang society will satisfy the people’s material needs, and it is committed to the construction and reconstruction of their mental lives. With their needs met, the people will have more freedom in their thought and personality, hence bolstering their happiness. 
In December 2013, the General Office of the CPC Central Committee issued guidelines to foster and practice core socialist values. It was emphasized that laws and regulations are a crucial guarantee for promoting mainstream social values. 
The opening article of the Civil Code explicitly designates “upholding core socialist values” as one of its purposes. Articles 3 to 9 enumerate eight basic principles: legal protection of civil rights, equality, free will, fairness, good faith, non-violation of the law, public order and good morals, and conservation of resources and protection of environment, or greenness. The principles are in fact specific implementations of core socialist values in the Civil Code. 
Take the greenness principle in Article 9 as an example. It allows no abuse of rights for parties to civil legal relations and has distinct Chinese characteristics from the perspective of comparative law. Since the 18th CPC National Congress when the promotion of ecological progress was declared a national strategy, green development has gradually become a social consensus. 
The Contract part of the Civil Code stipulates that parties to a contract shall comply with the greenness principle when fulfilling contracts, striving to avoid resource waste, environmental pollution and ecological destruction in the process of contract execution. The obligations of recycling unwanted items following the termination of credit and debt, recovering subject matters in sales contracts and conserving electricity in power supply contracts are also implementations of the green development philosophy in the Civil Code.  
In another instance, provisions in the Marriage and Family part on fine family traditions, family virtues and family culture will have a great bearing on the building of harmonious families and society. 
Therefore, blending core socialist values into the Civil Code will guide the people to acquire a broader mental outlook, nurture good manners and cultivate lofty morals. 
The Civil Code consists of the general provisions, the supplementary provisions and six parts on real rights, contracts, personality rights, marriage and family, inheritance and tort liability. It adopts the legislative model of integrating the civil and commercial fields, and it dedicates an independent section to personality rights, contributing a Chinese example and wisdom of codification to the world. In the critical stage of building a moderately prosperous society in all respects, the promulgation and implementation of the Civil Code suggests that China’s national governance system and the modernization of the country’s governance capacity have reached a new level. 
Ran Keping and Tan Zuocai are from the School of Law at Wuhan University.