29 May 2013

问题: The 1930 Chinese Civil Code in the German Tradition

German influence is a recurring theme in the study of Chinese law. Contract law, Foreign Investment Law, IP Law, Company Law…and I do not doubt this pattern shall continue. The interesting question is: why? Entire papers are written on this subject. In an effort to oversimplify and be brief, I will focus on the Chinese Civil Code drafted in 1930.

First, a bit of history. During the late Qing Dynasty, Emperor Guang Xu mandated the formation of a special legislative committee: hand-picked legal experts to draft a brand new civil code for China. The sunset days of the Qing Dynasty were the days of the imperial invasion; after the Opium War in 1840, China was opened to the world by the West. The existing legal system of China was to be re-hauled and ‘modernized’, integrating foreign and domestic practices. In 1928, upon the founding of the National Government of the Republic of China, a legislative council charged with codifying a civil law was formed following Guang Xu’s model.

The civil code that was published in 1930 and still exists in Taiwan today is essentially a copy of the German BGB; cut and pasted from the civil codes of Continental Europe. Mei Zhongxie, a legal scholar from Taiwan, shows that 60-70 % of the provisions in the new civil code are imported from the German BGB, 20-30 % from the Swiss and the rest of the provisions lifted from the civil codes of France, Japan and the Soviet Union. 


Why copy foreign codes? These codes were not suited to Chinese society; they spoke of inspiration rather than a deep insight into Chinese society. The result was a law disconnected from local customs, traditions and philosophy.

The legislative committee looked to the Continental-European system for three primary reasons. One, they saw Europe as the future of China, and so sought to adapt to what they believed the reality of Chinese society would be. China of 1920s was an agricultural society; the legislative committee wanted a legal system for the industrial and commercial society China would transform into. Two, foreign materials were clear while Chinese legal knowledge was scattered. The civil code would have to strike a balance between the effort to simplify the code (so that it could be promulgated in a wide way) with the effort to be thorough (the document still had to be comprehensive); a hurdle the European codes had already jumped. Third, the legislative committee had a deadline to meet. 
Currently, the PRC is looking to reform the Chinese Civil Code. The professors at RenMin University all agree: this time around, the government should not cut corners. If the civil code is to be successful, it must be based on profound theoretical study and broad perspective, requiring practical civil adjudicative experience and a deep insight into actual Chinese society. 

REFERENCES: “From an Integration of Western and Chinese Legal Norms to Comparative Legislation: Codification of the Civil Law of the Republic of China” Zhang Sheng (China Legal Science, Vol. 1, No. 2, May 2013).

KEYWORDS: Chinese Legal Culture, Qing Dynasty, Civil Code, BGB, Germany, Republic of China

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