Sunday, January 10, 2021

Dialogue: China's New Civil Code - CGTN - China Global Television Network

Dialog: China's New Civil Code - CGTN - China Global Television Network  Video - January 7, 2021

Guests: He Jing (Beijing - GEN Law Firm), Lawrence Ma (Barrister, and Chair of Hong Kong Legal Exchange Foundation), George Conk (Senior Fellow, Stein Center for Law  Ethics, Fordham Law School, NY, NY)

  In May of last year China's legislature - the National People's Congress (NPC) ratified a long term project of China's legal establishment: passage of a comprehensive civil code.  Modeled on the continental system, China's code, like Germany's and Japan's provides not a constitutional foundation but rather a legal framework that describes the basic structure of the civil law.  The many civil laws thus are in some sense to be guided by the principles declared in the comprehensive code. I participated in this panel discussion on CGTN, the English language channel of CCTV - China's national television news and entertainment network.  The new code is a piece of the long term project of the that is called making China a country ruled by law  依法治国。The independent NPC Observer reports that on January 10 the CP issued its first five year 2020-2025 plan, called Building the Rule of Law in China,

Among the remarkable elements of the new Code is the book on personal rights.  As I recently discussed it expands and embeds in basic law principles such as forbidding sexual harassment.  The 2005 law on the protecting the rights of women  in Article 40 bars sexual harassment and declares a right to complain 第四十条 禁止对妇女实施性骚扰。受害妇女有权向单位和有关机关投诉。 But the new code's Article 1010 [text and translation belowis not gender specific. And rather than the right to complain, it establishes the right to demand civil responsibility. The new Code provision makes clear that the objectionable harassment may be by words, images, physical conduct, et cetera. It further compels entities and agencies to take precautions, to not only accept but hear complaints, investigate, and use their powers to both guard against and stop such harassment.

The Code language on its face is broad enough to support harassment claims by men, and to be interpreted liberally to protect homosexuals, lesbians, etc. 

The new Code, which became effective on January 1 has been in progress since at least 2002 when the first comprehensive draft was circulated for discussion.  Progress was slow - bogged down by debates that were ideologically fraught such as the nature of public and private property.  Unlike out system in which land is held more or less in perpetuity, in China all land is owned by the state.  So owners of buildings essentially have leasehold interests.  Reconciling this with the growth of private enterprise in China proved troublesome for China's ruling Communist Party.

So China's legislature passed free standing laws.  In 2005  I published in the Chinese law review Private Law 私法 a translation of the the 2002 draft‘s tort chapter, followed by an introductory essay in the Fordham International Law Journal. A couple of years later for a conference of the American Law Institute in Beijing I published with Prof. Wang Zhu of Sichuan University a translation of the second discussion draft under consideration by the NPC.   In 2009 the NPC finally passed a free standing tort law.  The tort law, like many others has been replaced and modified by the new code, the official translation of which is HERE

My translation of the tort chapter of the new code - accomplished with the assistance of Fordham LLM and MSL graduates Wenjie Lyu, Rongrong Zhang and Haoshi Jiang is available as a Fordham working paper at SSRN.  We attempted to capture more carefully the structure and nuance of the Chinese original.  Thus, rather than the familiar "tort liability" we use phrases such as  `bear civil responsibility for infringement' which comes closer to the original than does the familiar term of art used in Anglo-American law.

Free standing laws repealed by the passage of the code are Marriage Law [婚姻法],  Inheritance Law [继承法],   General Principles of Civil Law [民法通则],  Adoption Law [收养法],  Guaranty Law [担保法], Contracts Law [合同法], Rights in Rem Law [物权法], Tort Liability Law [侵权责任法], General Provisions of Civil Law [民法总则].

As Susan Finder reports in her indispensable Supreme People's Court Monitor the Court  on December 30 and 31, 2020 issued an impressive group of interpretations, guidances and rules changes to achieve a smooth transition to the new code.  

- GWC January 10, 2021

Sexual harassment [my translation] 

第一千零一十条 违背他人意愿,以言语、文字、图像、肢体行为等方式对他人实施性骚扰的,受害人有权依法请求行为人承担民事责任。

 Article 1010 Where sexual harassment is committed against the will of another person by words, images or physical acts, et cetera the victim shall have the right to demand the actor bear civil responsibility according to law. 


  A government office, business, school, and other such unit must take reasonable precautions, accept and hear complaints, investigate, process and use the powers of the office to  to guard against and stop acts of sexual harassment of subordinates.

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