People's Republic of China Civil Code: Tort Liability Law
George W. Conk
Fordham Law School
Private Law Review, Vol. 5, No. 2 (The 10th Issue), pp. 77-111, December 2005
Fordham Law Legal Studies Research Paper No. 892432
The People's Republic of China is in the civil law tradition. After the turn toward a market-oriented system efforts to modernize Chinese law accelerated. In 1986 the 6th National People's Congress enacted the General Principles of Civil Law of the People's Republic of China. This 2002 draft code revision was issued for discussion by the Standing Committee of the National People's Congress.
The 1986 Code contained one hundred fifty six articles. It included chapters on basic principles and objectives [to protect the lawful civil rights and interest of citizens, legal entities, and to regulate civil relations], the status of natural persons [including the competent and the incompetent, households, and partnerships of individuals], the status of legal persons [recognizing legal persons as competent to perform civil acts and to independently enjoy civil rights and assume civil duties], defining civil acts, civil rights [property, contracts, intellectual property, and personal rights - including right to life and health, good name, and the freedom to marry], civil liability [generally, and for contracts and torts], set time limits, and addressed application of law to foreign civil relationships.
The current 2002 draft code, like our Restatements, affirms, modifies, and elaborates existing rules based on experience since the last promulgation. It too seeks to clarify, simplify, and improve the law. Formal legislative discussion of Part Seven, Real Property Rights, is now underway. It is expected that the Standing Committee of the Peoples Congress will next take up Part 8, Tort Liability Law. The draft Code expands the 1986 version's thirty four articles to the current sixty eight articles which state the basic principles of tort liability. The draft is divided into chapters on general provisions, compensation for harm, defenses, motor vehicle accident liability, environmental pollution liability, product liability, liability for ultra-hazardous activity, liability for damage caused by animals, by objects, and special provisions such as liability of persons with diminished capacity, and liability of website operators. The draft Code provides broad guidance but deference is afforded to the more specific provisions of laws such as those on product quality and environmental protection.
Scholars have debated the draft - many expressing skepticism over the wisdom of further codification at this time. Others have offered alternative drafts for discussion, a process that will accelerate as the formal discussion period approaches. Much of the exploration of the topic of tort law has taken place through the journal SIFA, and other publications of Peking University Press, such as the translation of Gerald Postema's collection PHILOSOPHY AND THE LAW OF TORTS.
The discussion in China has drawn much from study of other civil law countries, particularly Japan and Germany. The American experience may yet inform the code revision discussion in China. The Products Liability Restatement has been translated into Chinese. Scholarly attention is now being given to the current Third Restatement of Torts, Basic Principles, which is at a reasonably advanced stage - though the liability of possessors of land has not yet been addressed. And the Restatement project for the law of Economic Loss has now gotten underway, perhaps early enough to inform the discussion in China.
Of course the Chinese discussion will draw mainly on China's practical experience of the last 20 years. That practice is on a large scale. Three reports in the December 2005 issue of China Law Digest make the point. Since the Administrative Litigation Law was promulgated in 1989, the People's Courts at all levels have heard over one million first-instance administrative cases - grievances against governmental agencies. Among those cases that have been resolved, the plaintiffs have won about 30 percent. In southern Guangxi, bordering Vietnam, a peasant injured by a man on a motorbike was held entitled to be compensated at the level of urban workers because despite his official residence outside Chongzuo City, the injured man had in fact been living and working in the City for 10 years. In western China the High Court of Chongqing City, on the YangTze, has announced it will issue guidelines on compensation for traffic accidents. The Court held that compensation standards for migrant workers who have incomes from steady employment and who have lived in the city for longer than one year should be the same as for urban residents.
This Chinese-pinyin-English translation is intended to introduce American law teachers to the Chinese discussion. An every-word Chinese-Pinyin-English glossary is available on SSRN. (http://ssrn.com/abstract=899982) The project has been a learning tool for the translator. It is hoped that this version will prove useful for persons commencing study of Chinese law, and that it will be helpful as bilingual teaching materials for use in China.
Special acknowledgment is due to Fordham Law School for research assistance, to the U.S. Department of State, sponsor of the Fulbright Senior Specialists program, to the Council for the International Exchange of Scholars, and to Yi Jiming, Editor in Chief of SIFA.
Number of Pages in PDF File: 42
Keywords: China, Chinese law, translation, bilingual, teaching materials, torts, tort law, civil liability, civil code, draft, Chinese, pinyin EnglishAccepted Paper Series
Date posted: March 23, 2006
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