Brief Introduction to the Civil Code of P.R.China

2020-12-31 14:50:48

The Civil Code of China was adopted by the National People's Congress of China on May 28, 2020 and took effect on January 1, 2021. As you may know, The Civil Code compiled and replaced the Marriage Law, the Inheritance Law, the General Principles of the Civil Law, the Adoption Law, the Guarantee Law, the Contract Law, the Property Law, the Tort Liability Law and General Provisions of the Civil Law etc. There are seven parts and 1,260 articles in the Civil Code, which are in the order of General Provisions, Property Rights, Contracts, Personality Rights, Marriage and Family, Inheritance, Tort Liability and Supplementary Provisions.

1. Of the 1,260 articles in the Civil Code, 457 articles (36%) are reserved in the original. From the perspective of reservation ratio, due to the recent legislation time, the vast majority of articles in the General Provisions of Civil Law have been retained in the original, nearly half of the articles in the Property Law have been retained in the original, and about a quarter of the articles in the Contract Law and the Tort Liability Law have been retained in the original.

2. Of the 1,260 articles in the Civil Code, 409 articles came from "non-substantial amendments" to the existing law and relevant judicial interpretations, accounting for 33%.

The so-called "non-substantial amendments" of the Civil Code refers to the fact that there is no substantial change in the content and effect of the relevant provisions of the original law.

3. Of the 1,260 articles in the Civil Code, about 246 articles came from "substantial amendment" to the existing law and relevant judicial interpretations, accounting for 20%.

The so-called "substantial amendment” refers to the amendment of the provisions of the Civil Code to the existing laws and relevant judicial interpretations, which has substantially changed the constitutive requirements, legal effects or other substantive contents of the articles, or has further explained some contents on the basis of the original provisions. For example, Article 19 of the Guarantee Law stipulates that "if the parties have not agreed on the guarantee method or the agreement is not clear, they shall bear the guarantee liability according to the joint and several liability guarantees." Paragraph 2 of Article 686 of the Civil Code amends this provision to "if the parties have not agreed on or clearly agreed on the guarantee mode in the guarantee contract, they shall bear the guarantee liability according to the general guarantee." For another example, article 641 of the Civil Code (general provisions of ownership reservation) on the basis of reserving Article 134 of the Contract Law makes it clear that the ownership of the subject matter reserved by the seller without registration shall not be against a bona fide third party.

4. Of the 1,260 articles in the Civil Code, about 148 are "new", accounting for about 11%.

Specifically speaking, firstly, most of the provisions in the Part of Personality Rights section are new; secondly, a considerable number of provisions in the Contract Part are new, which mainly involves the provisions on the share responsibility and joint liability of debts in the sub-part of General Principles, the provisions on the factoring contract and the property service contract in the sub-part of Typical Contract, and the provisions on the management without cause and unjust enrichment in the sub-part of Quasi Contract. Thirdly, there are a few new provisions in the Property Rights, Marriage and Family, Inheritance and Infringement, such as the relevant provisions of a new type of usufructuary right of residence in Chapter 14 of the Property Rights, the liability reduction rules of "Good Intentions Riding Together" in article 1,217 of the Part of Tort Liability.