Translation: Tort Liability – Section 7 – Civil Code of the People’s Republic of China

Abstract

NOTE: UPDATED

WE POSTED ON JUNE 10, 2020 A TRANSLATION OF THE THIRD DRAFT OF THE TORT CHAPTER OF THE PRC CIVIL CODE, WITH THE PARAGRAPH NUMBERING OF THE VERSION PASSED BY THE NPC ON MAY 28, 2020. WE OWE THANKS TO NPC OBSERVER FOR MAKING AVAILABLE THE 3RD DRAFT AND THE FINAL TEXT.

THAT VERSION WAS POSTED ON CHINA LAW TRANSLATE WITH MODIFICATIONS TO CONFORM IT TO THE PASSED VERSION BY JEREMY DAUM OF YALE’S PAUL TSAI CHINA CENTER.

WE HAVE NOW COMPLETED OUR TRANSLATION OF THE FINAL VERSION AS PASSED BY THE NATIONAL PEOPLE’S CONGRESS.

WE PLAN TO PUBLISH AT THE FORDHAM INTERNAL LAW JOURNAL ONLINE OUR TRANSLATION WITH COMMENTARY ON THE DEVELOPMENT OF CHINA’S TORT LAW TO COINCIDE WITH THE JANUARY 1, 2021 EFFECTIVE DATE OF THE LONG AWAITED CIVIL CODE OF THE PRC.

AS THIS IS A WORK IN PROGRESS WE PARTICULARLY WELCOME COMMENTS AND SUGGESTIONS - GWC


TRANSLATION: TORT LIABILITY – SECTION 7 – CIVIL CODE OF THE PEOPLE’S REPUBLIC OF CHINA

Passed by the National People’s Congress, May 28, 2020. Effective January 1, 2121
By George W. Conk, Senior Fellow, Stein Center for Law & Ethics, Fordham University School of Law, with Wenjie Lyu, LLM, Rongrong Zahang, LLM, and Haoshi Jiang, MSL

Contemporary Chinese law began afresh in 1978 with the policy of “reform and opening” announced by Deng Xiao Ping, who from 1977 to 1992 was the most prominent of the Chinese leadership. After a half century of war, invasion, and revolution Deng was the architect of a policy of modernization. Universities returned to normal, and China began its rapid economic rise. Important to Deng’s program was the normalization of the legal system which had nearly collapsed.

In 1986 the legislature – the National People’s Congress adopted the General Principles of Civil Law. embraced a broad swath basic principles of civil law, including liability in tort. Over the next fifteen years law schools were built and progress in the professionalization of the courts was marked as the country adopted laws that brought it into conformity with the international trade system

But Chinese legal academic leaders traced their emerging law to Germany via Japan and Russia (then the USSR). So their aspiration was to adopt a comprehensive civil code. In 2002 a discussion draft was circulated and moved toward legislative consideration. One Section of that draft civil code dealt with tort liability. But controversy – particularly regarding the law of property – stalled consideration of the tort section of the civil code. I commented on the development of the law of tort and translated the draft code. It was published as A New Tort Code emerges in China An introduction to the discussion and a Translation of Chapter 8 - Tort Law of the Official Discussion Draft of the Proposed Revised Civil Code, 30 FORDHAM INTERNATIONAL LAW JOURNAL 935 (2007) http://ssrn.com/abstract=1015041

In 2009 the National People’s Congress passed the Tort Law as a stand-alone law. That law has been the basic framework of China’s tort law since then. But it should be recognized that causes of action are typically grounded in specific laws such as the Traffic Safety Law, the Environmental Protection Law, etc.

But the basic model that China’s legal authorities have in mind is the Continental civil law best exemplified by the German Civil Code. Development of the comprehensive code progressed slowly. It was intended not to transform the civil law but to provide a foundation for the law as it was in fact being developed by the steadily advancing array of statutory law. In 2017 the first section of the Code was passed as Basic Principles. In May 2020 the National People’s Congress met during the twin crises of instability in Hong Kong and the covid19 pandemic. It passed the comprehensive civil code.

o Although it made few substantive changes, the Civil Code formally abolished and replaced the elements which had previously been passed as stand-alone items. They include:
o Marriage Law [婚姻法]
o Inheritance Law [继承法]
o General Principles of Civil Law [民法通则]
o Adoption Law [收养法]
o Guaranty Law [担保法]
o Contracts Law [合同法]
o Rights in Rem Law [物权法]
o Tort Liability Law [侵权责任法]
o General Provisions of Civil Law [民法总则]

The reader will note that although we use the word “tort” in the title we generally abjure Anglo-American terms of art in order to more accurately capture the Chinese syntax. E.G. we would render 侵害他人承担侵权 责任 as “to bear responsibility for infringement of the rights of another”.
- GWC
September 20, 2020

Note: Paper in English and Chinese