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

69 Pages Posted: 13 Jun 2020 Last revised: 23 Jun 2020

Date Written: June 11, 2020

Abstract

Update: We translated the December 2019 Third Discussion draft of the tort law section of the Civil Law Code. In haste to make the work available we conformed the article numbers but had not yet scrutinized the draft as passed to confirm conformity. There are numerous changes. We hope to soon be able to present a fully conformed version.

Jeremy Daum at China Law Translate made use of our draft and has now posted the tort liability provisions.

Note that Code Section VII begins at Article 1164.
- gwc June 18, 2020

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]

This translation is to my knowledge the first of China’s Civil Code Section 7 – Tort Liability, which I style (in order to capture the Chinese more accurately) “responsibility for infringement of the rights of others”.
[I am grateful for editorial suggestions and proof-reading by Professor Du Ying, Central University of Finance and Economics, Beijing. Errors are mine.]

- GWC June 10, 2020

Note: Paper in English and Chinese

Suggested Citation

Conk, George W., Translation: Tort Liability – Section 7 – Civil Code of the People’s Republic of China (June 11, 2020). Fordham Law Legal Studies Research Paper No. 3624921. Available at SSRN: https://ssrn.com/abstract=3624921 or http://dx.doi.org/10.2139/ssrn.3624921

George W. Conk (Contact Author)

Fordham Law School ( email )

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HOME PAGE: http://law.fordham.edu

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