2020 NPC Session: A Guide to China’s Civil Code – NPC Observer
As the NPC comes into session today to review a draft of China’s first Civil Code [民法典], a legislative marathon will soon come to an end. The Code is a massive piece of legislation. Its latest draft includes 1260 articles, teeming with arcane legal terminology. Thus, if you want to read it for yourself, you might find the task daunting. In this post, we hope to make the Code just a bit more accessible. But our task here is a moderate one: we will not (and cannot) do a deep dive into the Code. Instead, we will give a brief overview of the Code’s drafting history, explain its significance, and provide a quick introduction to each of the Code’s subdivisions. We will focus on the new rules in the Code that have caught our attention, as well as issues that have engendered the most heated (sometimes quite public) debates.
All citations below are to the Code’s latest public draft (released in December 2019); other sources are not always cited. You can find all relevant legislative documents and prior drafts on this page.
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Part on Tort Liability [侵权责任编]
The Part on Tort Liability is based on the Tort Liability Law, with some adjustments to the Law’s structure and removal of provisions now covered by the General Part. A “tort” (or “delict” in some jurisdictions) is an infringement of another’s civil right (other than under a contract) that leads to civil liability, including both fault-based liability (for intentional torts and negligence) and non-fault-based (or strict) liability (arts. 1165–1166).
This Part is divided into ten chapters. Chapter I sets forth general principles, including rules for determining liability when there are multiple tortfeasors or when the victim is also at fault. Chapter II governs damages, including the types of loss that may be included in damages, and the ways to calculate damages. Chapter III prescribes special liability rules applicable to particular entities, including guardians of persons with diminished capacity, employers, internet service providers (ISPs), and educational institutions. Chapter IV to X each addresses a special (perhaps common) type of tort, including products defects, traffic accidents, medical malpractice, environmental or ecological damage, and injury by animals. These Chapters provide for the applicable liability rules, the defenses available to alleged tortfeasors, the burden of proof, and such other issues.
We want to highlight three sets of new provisions in this Part.
First, Chapter I codifies two new doctrines: the “assumption of risk” doctrine and “self-help” doctrine. Under the former, one who voluntarily participates in recreational or sports activities with certain risks will be deemed to have assumed such risks, and thus cannot hold other participants liable for any injury, unless the latter acted with intention or gross negligence (art. 1176). Under the self-help doctrine, the victim of an alleged tort (e.g., a restaurant owner) may, if necessary, seize the property of the tortfeasor (e.g., a diner refusing to pay) or take similar actions, when the situation is urgent, protection by authorities is not available, and the victim would suffer irreparable harm if she refrains from acting (art. 1177).
Second, Chapter II supplements the “safe harbor” provisions for ISPs. Under current law, a rightsholder may notify an ISP of allegedly tortious conduct by one of the latter’s users. If the ISP fails to take prompt remedial actions (say, taking down allegedly infringing contents), it would be held jointly and severally liable for any additional injury to the rightsholder. While keeping these provisions in place, Chapter II also allows the ISP to forward the notice of infringement to the user, who can then send a counter-notice to the rightsholder via the ISP, denying any infringement (arts. 1195–96). If the rightsholder does not take further legal action after receiving the counter-notice, the ISP must cease any remedial action taken, but will be shielded from liability (art. 196, para. 2). To deter abuse of this notice-takedown process, a new provision also holds rightsholders liable for tortious notices (art. 1195, para. 3).
Third, Chapters IV to X include new rules on various types of tort. For instance, a new provision reduces the liability of noncommercial carpool drivers for the injury caused to carpooling passengers in traffic accidents, unless the drivers acted with intention or gross negligence (art. 1217). According to a legislative report, this provision seeks to encourage carpools while attending to the victim’s needs for legal recourse. But this Part does not address the legal liability arising in a related context: commercial ridesharing services. According to an NPCSC spokesperson, interested parties disagree over the sort of liability ridesharing platforms and their drivers should each bear, and it would be inappropriate for the Code to lay down any rules without a “basic consensus.”
The most controversial provision in this Part concerns the liability for injury caused by objects falling out of buildings. Under current law, when an object is thrown from or falls out of a building and causes injury, but the tortfeasor is hard to locate, all residents in the building who could have done so (presumably everyone living above the ground floor) will be held liable, unless they can prove that they are not, in fact, the tortfeasor. Although this provision offers the victims of falling objects (who often suffer serious injuries and even death) a path to relief, the residents complain that this rule is not fair to them. This Part has thus made the following changes. First, it makes clear that the “tortfeasor pays” is the rule (art. 1254, para. 1). Second, after such an accident occurs, the relevant government agencies must promptly investigate and locate the person responsible (id. para. 3). Only when such an investigation fails to identify the tortfeasor may residents in the building be required to pay (id. para. 1). Lastly, the building’s manager now has a duty to take the necessary safety measures to prevent such accidents from happening, and will be held liable if it breaches that duty (id. para. 2).
We expect the NPC to approve the draft Code on Thursday, May 28. We will update this post with additional notable changes that are made during the NPC session.
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