On May 22, the draft civil code known as the "Encyclopedia" of social life was submitted for deliberation at the third session of the 13th National People's Congress. After decades of deliberation and five years of codification, this largest Chinese law since 1949, known as the "Code", has finally reached the final step before its official introduction.
Unlike the existing laws, the Civil Code has seven parts and 1,260 articles. In addition to the general provisions, it contains aspects such as property rights, contracts, personality rights, marriage and family, inheritance, and tort liability, which are closely related to everyone's life. With the development of science and technology, network virtual property, personal information protection, research on human genes and human embryos have also been written into it, and the Civil Code has thus become one of the most distinctive laws in China.
Subsequently, the three sessions of the 13th National People's Congress will vote on the Civil Code. Once adopted, the current General Civil Law, Property Law, Contract Law, Security Law, Marriage Law, Adoption Law, Inheritance Law, Tort Law, etc. will all be invalidated. The judicial interpretation will also be adjusted and cleaned up on the existing basis, and a new judicial interpretation will be made in accordance with the Civil Code.
In order to understand the process of formulating and promulgating the Civil Code, the Chinese characteristics in the provisions, and the characteristics of the times of this law that was born in the new century, the Beijing News reporter interviewed a number of legal experts involved in the compilation of the Civil Code. They are Hu Jihua, former deputy director of the Civil Law Office of the Legal Work Committee of the NPC Standing Committee; Wang Yi, vice president and secretary-general of the Civil Law Research Society of the Chinese Law Society, and dean of the Law School of the Renmin University of China; and vice president of the Civil Law Research Society of the Chinese Law Society Wang Weiguo, former dean of the School of Civil and Commercial Economic Law, China University of Political Science and Law; Liu Shiguo, vice chairman of the Civil Law Research Society of the Chinese Law Society and professor of the Fudan University Law School.
Solve new problems in the era of information civilization
Beijing News: Since 1949, China has successively formulated the Marriage Law, General Rules of Civil Law, Inheritance Law, Contract Law, Property Law, etc. With these separate laws, why do we need to codify the civil code?
Liu Shiguo: Historically speaking, it is the wish of several generations of legal persons to compile China's civil code. After 1949, China initiated the drafting of the Civil Code four times in 1954, 1962, 1979, and 2001, but for various historical reasons, the Civil Code has never been promulgated.
The Fourth Plenary Session of the Eighteenth Central Committee of the Party held in 2014 clearly proposed to improve the construction of the legal system of the market economy and compile the civil code; in 2020, the "Opinions on Accelerating the Improvement of the Socialist Market Economic System in the New Era" issued by the State Council also became the Civil Code Stimulant.
In fact, the core issue of the Civil Code is to promote the development of the socialist market economy. For example, the "principle of equality" in Article 4 of the General Regulations of the Draft is to provide guarantees for maintaining the equality of market subjects.
Wang Weiguo: From the perspective of the legal system, since the reform and opening up, China has issued a number of civil laws for different issues, including the succession law in 1985, the contract law in 1999, the property law in 2007, the tort liability law in 2009, etc. , More and more legal rules have caused some problems.
On the one hand, laws and regulations formulated at different times have historical limitations in understanding the problem. This makes the laws of various ministries inconsistent and even conflicting.
For example, the right to use residential land for 70 years. In 1990, the “Interim Regulations on the Assignment and Transfer of Urban State-owned Land Use Rights” promulgated by the State Council mentioned that the maximum period for the transfer of residential land use rights is 70 years; Users need to apply for renewal one year in advance, otherwise the state will reclaim the land use rights for free. In 2005, the Property Law also stipulated that the period of land use rights for residential construction expires and is automatically renewed.
On the other hand, in the case of fragmented laws, people have inconvenience in understanding the law and applying the law, and do not know which law to go to find the answer. Therefore, it is necessary to sort out, integrate, and unify the long-formed legal resources through the code to make it more suitable for the current social life. Therefore, the compilation process of the Civil Code is actually a process of legal progress.
In addition, the principles and rules determined through the Civil Code will not be easily changed. Only in this way can everyone have a stable expectation of the legal system and promote social and economic development.
The Beijing News: There are 1,260 articles in the Civil Code. The Chinese people ’s life and death, marriage, and buying a house are all covered. What kind of rules can be included in the civil code, what kind of rules are not suitable for inclusion in the civil code?
Hu Jihua: The Civil Code is a rule of conduct as well as a rule of adjudication. Its existence is to tell everyone what to do normally and what to do if something goes wrong. In the process of determining what is included in the Civil Code, its basicity, universality, stability, and applicability should be considered. That is to say, the contents covered by the Civil Code are generally applicable and universal rules in social life, and are rules that have proved effective over time and can be used for a long time.
The rights that should be protected by the Civil Code will be regulated by extracting common factors.
Wang Yi: From the time of formulation, the French civil code appeared in the transitional stage of agricultural civilization to industrial civilization, and the German civil code appeared in the stage of maturity of industrial civilization. However, the Chinese Civil Code was born at the stage of the transformation from industrial civilization to information civilization. Therefore, it is necessary to face new questions and new requirements after humanity enters the information civilization, and to answer questions that other civil codes do not need to answer.
For example, in the 2018 gene editing baby incident, we found that the deep involvement of technology has begun to affect the certainty of human beings, and it has brought great impact. This is a question not covered by the civil codes of other countries, but we realize that the Chinese Civil Code must answer this question.
The consensus of the discussants involved in the compilation of the Civil Code is that scientific research should have rules and a bottom line, and must comply with laws, regulations, and ethics, so the study of human genes and human embryos has been written into the Civil Code. The draft writes in Article 1009 of the Personality Rights Code, "While engaging in medical and scientific research activities related to human genes, human embryos, etc., we must abide by laws, administrative regulations and relevant national regulations, and must not endanger human health, violate ethics, or Damage the public interest. "
In addition, when China compiled the civil code, the food and clothing problems of most of the Chinese people have been resolved, and they began to yearn for a better life. And one of the core and key contents of a good life is the confirmation and protection of personal freedom and personal dignity. In this context, the draft civil code independently composes the personality rights, which can best meet our longing for a better life, and can best achieve the legislative purpose of protecting personal freedom and dignity.
Beijing News: In the current legal system, the Constitution stipulates civil rights such as personal freedom and inviolability of personal dignity, which is also stipulated in the Civil Code. Are there any differences in the relevant provisions of the two laws?
Wang Yi: The Constitution stipulates the rights and obligations of citizens. In addition to personal freedom and inviolability of personal dignity, there are also freedoms of speech, publication, assembly, association, march, and demonstration. These belong to the rights of citizens, and mainly solve the problem of the relationship between the state, especially the departments that exercise public power and citizens.
The personality rights stipulated in the Civil Code are intended to resolve the recognition and protection of personality rights and interests among equal subjects. It is different from the civil rights stipulated in the Constitution.
Hu Jihua: The notes on the sub-divisions (drafts) of the Civil Code specifically mention that this part of the personality rights compilation mainly stipulates the content, boundaries and protection methods of the personality rights of natural persons and other civil subjects from the perspective of civil laws and regulations, without involving citizens Political, legal and social rights.
Find the Chinese value consensus
Beijing News: The compilation of the Civil Code has lasted for more than 5 years. Which organizations or groups are involved? If all parties have different opinions, how to coordinate and negotiate?
Hu Jihua: Leaded by the Legal Work Committee of the Standing Committee of the National People's Congress, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Justice (formerly the State Council Legislative Affairs Office), the Chinese Academy of Social Sciences, and the Chinese Law Society formed a coordinating group for the compilation of civil codes. Issues such as coordination, decision-making, and progress in the compilation process will be submitted to the coordination group meeting for research and discussion.
In addition, the draft should also be published on the Internet after being submitted to the Standing Committee of the National People's Congress for public comment. The current data is that during the compilation process of the Civil Code, it has publicly solicited opinions through the Chinese People's Congress Network 10 times, and received a total of 1.02 million opinions and suggestions from 425,000 people.
Wang Yi: The compilation of the Civil Code is divided into two steps. The drafting of the General Principles of Civil Law and the compilation of each sub-compilation of the Civil Code are generally first proposed by academics and submitted to the Legal Affairs Commission for reference. After investigation and research and several rounds of soliciting opinions, the Legal Work Committee gradually formed the indoor draft of the Civil Law Office, the draft for solicitation, and the draft for submission to the Standing Committee of the National People's Congress. After deliberation, the Standing Committee solicits opinions from the society. Finally, a draft civil code is submitted to the National People's Congress for deliberation.
During this process, there will definitely be different opinions and different voices. For the legislature, the most important thing is to find a consensus on Chinese values.
The leaders of the Standing Committee of the National People's Congress and the comrades of the Legal Work Committee often go to various places to conduct research and hold seminars. As a participating unit, the Chinese Law Society also extensively organizes and mobilizes local law societies to participate in research nearby. These investigations are to understand the current value consensus. In addition, tens of millions of cases are handled by courts at various levels every year, which is also a very good material for investigation.
As far as the protection of personal information is concerned, the academic and practical circles have different value orientations, and the dispute is still relatively large. For example, some Internet companies that have the ability to obtain big data want to be less restricted in the collection and use of personal information, and strive for a more relaxed business environment; natural persons want stricter restrictions, and the more adequate the protection, the better.
The legislature will listen to all parties and try to find a minimum value consensus. Therefore, the draft civil code clearly stipulates in the privacy rights and protection of personal information of the personality rights, including personal information including natural person ’s name, date of birth, ID number, biometric information, address, telephone, e-mail and whereabouts information, etc. Protected by law. The collection and processing of personal information of natural persons shall follow the principles of lawfulness, legitimacy and necessity, shall not be excessively collected and processed, and shall meet the corresponding conditions.
So this is a consensus-building process. The legislature will transform the found value consensus into the provisions and rules of the Civil Code.
Beijing News: Previously, there were many separate laws in the field of civil law. Now we have to sort them out and compile them into civil codes. What adjustments have been made?
Hu Jihua: The compilation of the Civil Code is not a simple summary, but to integrate and compile the current civil legal system of China under the premise of systematization and scientificization. The resulting code not only needs to adapt to the development requirements of socialism with Chinese characteristics in the new era, conforms to national conditions and reality, but also needs to be scientific in style, rigorous in structure, reasonable in norms, complete in content, and logically consistent.
In the process of determining each subdivision, it is necessary not only to base on the existing laws of the various ministries, to respect and refer to the drafts of expert recommendations from academia, but also to study the judicial interpretation issued by the Supreme Court. On the one hand, delete or modify the content that is out of date; on the other hand, it is necessary to add or refine relevant provisions to make it perfect.
Faced with some issues that are still undergoing major changes and developments, experience is not mature enough, and consensus has not yet been reached, they may not be included in the Civil Code for the time being.
For example, "Couple Debt" in the Marriage and Family Series has been under discussion on this part. At the beginning of 2018, the Supreme Court issued the "Interpretation on Applicable Laws Regarding the Trial of Cases Concerning Debt Disputes Concerning Couples", which stipulates that debts with common intentions, such as signatures by both spouses and subsequent recognition by one spouse, shall be recognized as common debts of spouses. At that time, the first review draft of the Civil Code did not include the content of “co-debt co-signing” in debts in marriage. Many experts, scholars and relevant parties suggested that the content of judicial interpretation should be included in the Civil Code. The relevant rules were added to the second review.
Rules like this with relatively large social influence must be carefully decided in the process of joining the Civil Code.
Wang Yi: Why is it called the compilation of civil code? It is to have a systematic and logical arrangement of legal rules, rather than simply merging the previous laws.
At present, the general regulations are actually extracting common factors for each sub-series. For example, for the judgment of the effectiveness of civil legal acts, Section III of Chapter VI of the General Regulations establishes relatively complete rules, so some of the previous rules on contract effectiveness in the Contract Law have been removed. In addition, some contents that can not be found in the various branches are written in the general rules as "surplus of legislative technology".
Because of the need for a system and logic, the position of some provisions will also be adjusted.
For example, the "improper profit" (referring to the fact that there is no legal basis, which is harmful to others and obtains benefits, and the victim has the right to request the beneficiary to return the inappropriate benefits) system. As one of the reasons for the debt, it is closer to the contract on the premise that the draft of the Civil Code does not have a general compilation of the debt law. Therefore, in the current draft, unjust enrichment is arranged in the quasi-contract part of the contract.
In addition, the original guarantee law was abolished, and the contents of the guarantee law were dispersed to different parts of the draft civil code. For example, the deposit system was incorporated into the general rules of contract compilation; the guarantee contract was placed in the contract compilation and became a chapter in a typical contract; the security rights were included in the real rights compilation.
Beijing News: In terms of the specific expression of the provisions, the Civil Code has deleted some relatively obscure concepts, such as the exclusion period and the intermediary contract. Why is this so?
Hu Jihua: As the basic law in the private law field of civil society, the civil code must first be understood. This is a rule that must be followed in legislation. Of course, as a law, it must also have internationally recognized legal terms, such as legal person, real right, easement, etc. How to balance and choose between popular and accurate requires legislative wisdom. To express the professional terminology in the most similar language, it also needs further publicity and explanation.
As you mentioned, in the contract compilation, the intermediary contract specified in the contract law has been changed to an intermediary contract, which is easier to understand. In terms of legal connotation, the intermediary and the intermediary are still slightly different, but the purpose of the amendment is to popularize. I think the focus of the article is not on the name of the contract, but on its content. There is no major adjustment in this part of the content.
Chinese characteristics in the Civil Code
Beijing News: Compared with the civil codes of other countries, what are the same contents of the Chinese Civil Code? What are the different contents?
Wang Weiguo: As a law, the draft of the Chinese Civil Code draws on the achievements of global industrialization and modernization since modern times. It also absorbs the experience of European codification and some concepts in Anglo-American law. For example, the right to privacy was introduced from abroad. This is because countries have the same understanding of civil rights and rights protection, and it is normal to learn from other countries.
At the same time, the Chinese Civil Code also reflects China's social development philosophy and absorbs the fruits of reform and opening up. Among the more distinctive features are the regulations related to the land system. At present, only China implements land public ownership-to be more precise, the "public and private use" system. In the context of land public ownership, private land use and market circulation are implemented.
In fact, the land system with Chinese characteristics is one of the foundations of the compilation of property rights in the Civil Code. Only on the basis that the land use rights can be transferred according to law, we have established a land market. In recent years, in order to further invigorate land use rights, speed up the orderly circulation and effective use of land, the separation of property rights and identity rights between land contractual management rights and homestead land use rights has resulted in the separation of ownership, qualification and property "Pattern.
The Civil Code also reflects this change. The draft adds the provision that "the land contractual management right owner can independently decide to transfer the land management right to others by lease, shareholding or other methods according to law" in the property rights compilation, clarifying the land management right with a transfer period of more than 5 years, and the self-transfer contract takes effect Established at the time.
Hu Jihua: The socialist economic system with Chinese characteristics determines the relevant system in our civil law. For example, the Property Law and the current draft Property Rights Code all mention the protection of state, collective, and private ownership. Only China divides this way. Article 113 of the General Provisions of the Draft Civil Code also writes, "The property rights of civil subjects are equally protected by law."
In addition, the divisions of individual industrial and commercial households, rural contracted households, and legal persons, especially the special legal persons and other relevant provisions are also characteristics of the Chinese Civil Code. This is the actual situation in China and is reflected in the Civil Code.
Beijing News: In addition to these Chinese characteristics determined by the basic economic system, what other contents in the civil code are not available in other countries?
Liu Shiguo: For example, the compilation of personality rights, the civil codes of other countries in the civil law system did not compile personality rights separately. In 2017, the report of the 19th National Congress of the Party mentioned the need to protect the personality rights of the people, which became the political basis for the establishment of a personality rights editor in the Civil Code.
For example, the privacy right mentioned in the personality rights editor, everyone will pay attention to what is privacy, which is closely related to everyone's daily life. In the draft of the Civil Code, privacy is defined as “the tranquility of the private life of natural persons and private spaces, private activities, and private information that are unwilling to be known to others”, which involves both tranquility and privacy. This definition comes from the actual situation in China, and also refers to foreign experience.
Wang Weiguo: The concept of green development is also one of the Chinese characteristics of the Civil Code.
When the civil codes of France, Germany and other countries were promulgated, they adhered to individualism, and did not include ecological environmental protection, resource protection and other institutional concerns that reflected the overall interests of the society and long-term interests into the legislative perspective. The Chinese Civil Code clearly stipulates environmental and ecological protection. This embodies the concept of civil law that our country adheres to the unity of social standard and individual standard.
Previously, a special chapter in the Tort Liability Law stipulated environmental pollution liability, which was mainly based on the protection of victims. The draft of the Civil Code added content on ecological destruction on this basis, mainly based on the protection of overall social interests.
Maintain the vitality of the Civil Code
Beijing News: Judging from the draft submitted for review, is there any regret in the Civil Code?
Wang Yi: Everyone has a civil code that they think is the most ideal, but the final version must be a product of compromise, compromise, and constant search for balance.
I personally think that in terms of legislative techniques, the Civil Code still has a lot to improve and improve. For example, in the arrangement style, the personality rights series should be placed in the second part to adjust the personal relationship; the property rights series and the contract series should be placed in the third and fourth parts to adjust the property relationship; then the marriage and family series and the inheritance series, they both Adjust personal relations and property relations; finally, through tort liability compilation, protect personal and property rights as a whole.
Wang Weiguo: I personally think that it is more regrettable that the intangible property rights are not included in the civil code, especially intellectual property rights. At present, China's existing intellectual property-related legislation includes patent law, trademark law, copyright law, etc., and the content is more abundant than personality rights. However, for various reasons, intellectual property rights could not be compiled separately.
Beijing News: After entering the information age, the development of science and technology is changing with each passing day, and the development speed of new industries and new formats is beyond imagination, and new conditions that have not existed in social life appear from time to time. Under such a premise, how can the civil code maintain its vitality?
Hu Jihua: The Civil Code is a relatively stable law, and some constantly changing and constantly enriching content should not be included. Some content that belongs to the category of civil law can be enacted as a special law, free from the civil code, and wait until conditions are ripe to discuss whether to add the civil code.
For example, in the issue of intellectual property rights, some scholars suggested that it should be compiled independently. But in the end, it was not compiled independently. An important reason is that this system is still changing rapidly and needs to be constantly adjusted and perfected. If relevant legal norms are now incorporated into the civil code, the continuity and stability Has a certain impact.
Wang Yi: From the perspective of historical experience, most of the problems in real life are relatively basic problems, and they will continue to exist for a long period of time. From this perspective, the issues involved in the Civil Code must be long-standing and have fundamental and universal significance, so it must have its own vitality.
In addition, if there are new social phenomena in the future, we may be too late to amend the Civil Code and formulate a separate law, and to give a specific answer. However, in the Civil Code, we will make some principled provisions. In the judgment process of actual cases, the judiciary can refine these principles through typical cases and judicial interpretations.
For example, the question of euthanasia-can treatment be stopped on the basis of respecting the will of natural persons without violating medical ethics and under strict control? This issue is still very controversial, so it was not included in the draft civil code. However, it is clear in the draft Civil Code that natural persons have the right to life and the right to maintain their own life safety and dignity. If similar cases arise in the future, the judiciary may refer to this provision.
Many similar problems, even if there is no regulation now, may be added if consensus is reached in the future. There are many such interfaces in the draft civil code.
Wang Weiguo: A similar situation is also found in the editor-in-chief.
For example, in the current draft, there are no more regulations on intangible property, including financial assets, but the general chapter mentions the protection of data and virtual virtual property by law. It may be due to lack of experience accumulation and theoretical preparation, but these contents are all directions for future development and improvement.
So it seems to me that this codification of the Civil Code is not the end point, but a new starting point. As society develops further, we can also revise or re-compile the civil code to make it more modern.
Beijing News reporter Han Qinke