On 1 January 2021 People’s Republic of China first ever civil code entered into force. [1] This code, made by 1260 articles and divided in seven books, is long awaited achievement which is part of a broader political project that links the code to the theory of the “socialist rule of law with Chinese characteristics”[2]. Within the framework of this theory and through this new piece of legislation China pursues to end the reform phase based only on massive legal transplants, in order to start a new phase that, instead, takes into account also the identity and the specificity of the development process of the country[3].
However, even if distancing herself from massive practices of imitation of foreign legal models, China did not repudiate the model of civil code that has represented the historical reference point for Chinese modern legal reforms, ie the German code model. On the wake of this model the code follows the structure based on general-special parts combination, ie总则 (zongze) and 分则 (fenze), were the first are the “general rules” of private law to be included in the first book of the code (Allegemeinerteil in the BGB), and the second are “departmental rules” for specific sections of private law, to be inserted in the subsequent books. Together with the structure, some paradigmatic elements of the German model, first of all the category of the juristic act (Rechtsgeschäft) is maintained. So it happens for several private law concepts - such as the concepts of personhood, natural and legal persons, legal and juristic act, real rights, property, possession, obligation, civil liability - whose origin dates back to a century ago, when these concepts entered in China as an integral part of a massive reception of Western legal models aimed at modernizing her legal system.
Having said this, we should not forget that the contemporary Chinese legal landscape has dramatically changed during the last few decades, also due to a huge circulation and intertwining of legal models and that Chinese private law has become more and more marked by the selective appropriation and combination in new formats of legal models having various provenances.
The civil code repeats many of the contaminations already experienced in Chinese private law. For example, in the matter of civil liability, on the subject of remedies, article 179 includes an articulated list of twelve items which included remedies that were already present in the 1987 General Principles of civil law and remedies provided for in the 2099 Law on Tort liability. Among these, we also find the insertion of punitive damages, conveyed as a model by US law. Furthermore, new norms, likewise inspired by common law, have been introduced in the text, such as the purchase money security interest norm, (art.416) lifted in its entirety from the Uniform Commercial Code, or, again, in the matter of civil liability, the “good Samaritan immunity clause” of American law, inserted in art. 184.
An increasingly important part in the contamination strategy is played by the "Chinese characteristics", that is, those rules that are a direct expression of the local context. An example is to be found within the discipline of legal personhood, where the legislator has not followed the German model, introducing a new classification. The General part of civil law classifies legal persons in three categories, i.e. legal persons for profit (营利法人, yingli faren), non-profit legal persons (非营利法人, fei yingli faren) and special legal persons (特别法, tebie faren). Non-profit legal persons cannot distribute profits to founders, investors or members (Article 87) and are identified by law in organizations that perform social services (社会服务机构, shehui fuwu jigou), in foundations (基金会, jinhui), in public institutions (事业单位, shiye danwei) that pursue aims of public interest (Article 88) as universities, hospitals, research institutes.
An important innovation in this section concerns the introduction of the category of special legal persons, which attributes, for the first time, personhood to institutions that have always been protagonists of Chinese economic and social life and that have undergone significant changes, related to the reforms of the last decades, in their roles and functions. These are the Committees of urban residents (居民委员会, jumin weiyuanhui) and rural committees (村民委员会, cunmín weiyuanhui) and, above all, rural collective economic organizations (农村集体经济组织, nongcun jiti jingji zuzhi) that, pursuant to Article 10 of the Land Administration Law[4], exercise rights on collective ownership (集体所有权, jiti suoyouquan), and in particular the rights of land use for residential purposes (宅基地使用权, zhaijidi shiyongquan) (Article 153), which are a fundamental component of the Chinese real estate market in rural areas.
The local typicality that, alongside the imported elements, marks this new code is expressed since the first norms of the code, that is, by the general provisions of the first book, where we find the re-emergence of local customs as a source of law where the law does not provide (art. 10). Customs have so far been identified as having no relevance in the system - formalistically understood - of the sources of law. The new civil code emblematically marks the official return on the scene of this source of law, which is typically associated with the local legal substratum of each legal system.
Another relevant distinctive element of the civil code is to be found in the structure of the code, and in particular in the adoption of an independent book on Personality rights, which is considered an expression of the Chinese characteristic that can have a innovative impact for whole civil law world. As a matter of fact “this book aims to close what is considered a loophole in traditional civil codes”[5], given the central role of personality rights in the scenario of contemporary law.
Thus, this code is a full expression of its time, a time marked by the hybridization of legal models. Within this context the Chinese characteristics, are not simply part of a rhetoric dimension. When the idea of the Civil code was introduced in China, at the dawn of the modern legal reforms, the local aspects were considered only in the perspective of a Western-style imagined future. Today, one century later, the local dimension has been acquiring increasing consistency, in terms of more openly declared political and legal strategies, of rules shaped by the specific local legal development process and, last but not least, of the transmission of cultural patterns that are rooted in the Chinese legal mentality and are part of the local legal substratum.