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China: First Step Towards Adoption of a New Civil Code

(Mar. 30, 2017) On March 15, 2017, the National People’s Congress (NPC) of the People’s Republic of China (PRC) passed the General Provisions of the Civil Law. (Zhonghua Renmin Gongheguo Minfa Zongze [General Provisions of the Civil Law of the PRC], NPC website; General Provisions of the Civil Law, CHINA LAW TRANSLATE (Mar. 15, 2017).)  The General Provisions will take effect on October 1, 2017.

 The new General Provisions consist of 11 chapters and 206 articles, covering principles of civil law, definitions of terms in the civil legal system, civil rights, basic rules for civil acts, agency, civil liability, and litigation, among other subjects. (Zhongguo Minfa Zongze Dansheng, Kaiqi “Minfadian Shidai” [General Provisions of the Civil Law of China Enacted, Start of the “Civil Code Era”], NPC website (Mar. 15, 2017).) Although the new General Provisions is based on a revision of the 1986 General Provisions of the Civil Law, it is more than an amendment; it will be the first part of a comprehensive Civil Code planned to be enacted in 2020. (Id.) The former General Provisions, which had only undergone a minor amendment once, in 2009, comprised nine chapters and 156 articles. (General Principles of the Civil Law of the People’s Republic of China [Revised] (1986 General Provisions) (adopted and promulgated on Apr. 12, 1986, in force on January 1, 1987, as amended by the Decision of the NPC Standing Committee on Amending Some Laws (issued and in force on Aug. 27, 2009).)

The planned Civil Code will consist of six parts: the general provisions, property, contract, tort liability, marriage and family, and inheritance. (Zhongguo Minfa Zongze Dansheng, Kaiqi “Minfadian Shidai” [General Provisions of the Civil Law of China Enacted, Start of the “Civil Code Era”], NPC website (Mar. 15, 2017).) The Civil Code is designed to fill in gaps and solve inconsistencies among several applicable laws in the civil legal system, including laws on all the topics it will cover. (China Finally Starts to Write a Proper Civil Code, ECONOMIST (Mar. 16, 2017); for an overview of the codification process, see for example Xianchu Zhang, The New Round of Civil Law Codification in China 1:1 UNIVERSITY OF BOLOGNA LAW REVIEW 106-137 (2016); LEI CHEN & C.H. VAN RHEE, TOWARDS A CHINESE CIVIL CODE: COMPARATIVE AND HISTORICAL PERSPECTIVES (2012).)

Protection of Rights of Young and Elderly

The new General Provisions provides that anyone who is under 18 is a minor, and an eight-year-old minor may engage in civil activities appropriate for his or her age and level of intelligence. (General Provisions, arts. 17 & 19.) Before the new General Provisions come into effect, a minor can only engage in such activities when he or she reaches the age of 10, as prescribed in the 1986 General Provisions. (1986 General Provisions, art. 12.)

The new General Provisions includes several additional provisions in the section on guardianship in order to better protect the rights of the young and the elderly. For instance, local governments and organizations will need to consider the best interests of the ward when appointing guardians, and guardians must act in the best interests of the minor or elderly person under guardianship. (General Provisions, arts. 31, 35, & 36.) Additionally, if a guardian does severe harm to the ward, or fails to perform his or her guardianship obligations, he or she will be disqualified from serving as a guardian. (Id. art. 36.)

Protection of Rights of the Fetus

Unlike the 1986 General Provisions, the new General Provisions protects fetuses’ right of inheritance and right to accept gifts, unless the fetuses turn out to be stillborn babies. (Id. art. 16.) This provision revised article 28 of the Inheritance Law, which states that “at the time of the partitioning of the estate, reservation shall be made for the share of an unborn child. The share reserved shall, if the baby is stillborn, be dealt with in accordance with statutory succession.” (Law of Succession of the People’s Republic of China (adopted on Apr. 10, 1985, and in force on Oct. 1, 1985) art. 28, Consulate-General of the People’s Republic of China in New York website.)

Protection of Privacy and Personal Data 

Right to privacy was not included in the 1986 General Provisions. The right to privacy in China was protected for the first time in 2010, with the adoption of the Tort Liability Law, which expressly protects that right. (Zhonghua Renmin Gongheguo Qinquan Zeren Fa [Tort Liability Law of People’s Republic of China] (adopted on Dec. 26, 2009, effective on July 1, 2010), arts. 2 & 62, NPC website.) The new General Provisions states, “individuals have the rights to life, body, health, name, portrait, reputation, honor, privacy and marriage autonomy,” affording broad protection to the right to privacy under civil law. (General Provisions, art. 110.)

In addition, the new General Provisions aims to strengthen protection of the personal data of individuals, (id. art. 111), which is referred to in the Ninth Amendment of the Criminal Law, the Cybersecurity Law, and the draft e-Commerce Law. (Fu Ying Tan Geren Xinxi Baohu: Yi Bei Naru Dianzi Shangwu Fa deng Duoxiang Falü [Fu Ying Comments on Personal Data Protection: Has Been Included in e-Commerce Law and Several Other Laws], NPC website (Mar. 5, 2017).) Unlawful collection, use, transmission, trade, or disclosure of others’ personal data is prohibited.  (General Provisions, art 111.)   

Statute of Limitations Extended 

In general, the current time limit for filing civil suits is two years under the 1986 General Provisions. (1986 General Provisions, art. 135.)  The new General Provisions extends the time limit to three years. (General Provisions, art. 188.) It also adds a special provision stating that the time limit to file a lawsuit for damages for a victim of sexual assault who is a minor starts when he or she reaches the age of 18.  (Id. art. 191.)

Defamation of “Heroes and Martyrs” Prohibited

The new General Provisions prohibits defaming “heroes and martyrs.” (Id. art. 185.) Anyone who harms the name, portrait, reputation, or honor of heroes and martyrs, insofar as it hurts the public interest, will bear civil liability. (Id.)

Prepared by Emma Wei, Law Library Intern, under the supervision of Laney Zhang, Senior Foreign Law Specialist.