Today's Legal Talk ▏ A New Era, a New Civil Code, New Citizens

The title itself—“A New Era, a New Civil Code, and New Citizens”—already hints at the three key areas I’d like to focus on: the current historical context, the high points of the new Civil Code’s legislative framework, and the close relationship between citizens and the law in our new era. Now, let’s begin with the first topic: “A New Era of Rule of Law.”

I. A New Era of the Rule of Law

As we all know, the report of the 19th National Congress pointed out that “after long-term efforts, socialism with Chinese characteristics has entered a new era.” This is the social new era we often talk about. However, the new era I’m referring to here is the new era of rule of law—a new era characterized by a country under the rule of law. This concept was officially affirmed at the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China in October 2014, through the “Decision of the CPC Central Committee on Comprehensively Promoting the Rule of Law.” The Decision emphasized that the overarching goal of comprehensively promoting the rule of law is to build a socialist rule-of-law system with Chinese characteristics and to construct a socialist country under the rule of law, thereby effectively safeguarding the significant advantages of social fairness, justice, and the protection of people’s rights. From that moment onward, our country entered a new era of rule of law. This new era has undergone a process of emergence and continuous refinement. Its origins can be traced back to the 15th National Congress of the CPC in 1997, where the Congress first proposed the fundamental strategy of the Party leading the people in governing the country—namely, under the leadership of the Party, the broad masses of the people would gradually institutionalize, standardize, and proceduralize socialist democracy in accordance with the Constitution and laws. At the 15th Congress, the idea of governing the country according to law was put forward, thus laying the foundation for the concept of building a country under the rule of law. By 2014, this concept had been fully established; and it reached its final stage of perfection at the Fourth Plenary Session of the 19th Central Committee in 2019, when the principle of governing the country according to law was further extended, systematized, theorized, and institutionalized. The session underscored the need to uphold and improve the socialist rule-of-law system with Chinese characteristics, enhance the Party’s capacity to govern according to law and administer according to law, and promote the modernization of the national governance system and governance capabilities.

Now that we’ve discussed the context of this new era, I’d like to briefly introduce you to some basic legal knowledge. After all, we live in a country governed by the rule of law, and it’s the responsibility—and indeed the duty—of every citizen to know the law, abide by it, and make good use of it.

First, let me talk about jurisprudence. As Engels once said, “A nation cannot stand at the pinnacle of science for even a single moment without theoretical thinking.” In fact, jurisprudence is an important speculative discipline—a form of theoretical thinking—and serves as the foundation for many social sciences. Law, however, is distinct from jurisprudence. By its basic definition, law is the collective body of behavioral norms that embody the will of the ruling class, formulated or approved by the state and enforced through the state’s coercive power. The most fundamental characteristic of law is that its implementation is guaranteed by state coercive force—namely, by the state’s organs of public security, prosecution, and judicial administration, commonly referred to as the “public security, prosecution, and judiciary.” In a broad sense, law encompasses all social norms and has a very wide scope; it includes not only laws enacted by the National People's Congress but also various normative documents issued by other state authorities—for example, local regulations and rules promulgated by governments at all levels, as well as rules formulated by the State Council. Generally speaking, the lowest-level legislative body is the prefectural-level city government. In a narrow sense, “law” refers specifically to the normative legal documents enacted by the National People's Congress and its Standing Committee—those documents whose names end with the word “law.” As a general rule, laws passed by the National People's Congress take precedence over regulations enacted by the people's congresses of provinces and autonomous regions, and regulations enacted by the provincial and autonomous regional people's congresses take precedence over local regulations enacted by municipal people's congresses. In the process of applying the law, these hierarchical relationships are observed: the relative hierarchy of laws issued by the State Council and the people's congresses of provinces and autonomous regions is typically determined by the Standing Committee of the National People's Congress.

Second, having finished discussing the legal system itself, let me briefly explain to you the two major legal traditions and their origins in China. Currently, there are two primary legal systems in the world: one is the common law system, dominated by the Anglo-American legal tradition. In such systems, countries do not typically enact written statutes; instead, when faced with a case, judges rely on precedents—previous rulings that are similar to the current case—to reach their verdicts. Because these countries lack a comprehensive body of written laws, lawyers often play a crucial role, and the outcomes can vary significantly depending on which precedents are applied. At present, this system is predominantly found in Anglo-American countries as well as in some former British colonies. Hong Kong, for instance, currently operates under the common law system. This explains why the situation in Hong Kong has become so tumultuous—there simply isn't a clear legal framework to guide decisions. Historically, Hong Kong never had a strong legislative tradition, making it extremely difficult to pass new laws. Take, for example, the Meng Wanzhou case: Canada, being a common law country, has a particularly unique judicial process. Judges here wield considerable discretion, making defense strategies exceedingly challenging. Defenders can only seek loopholes in the procedural aspects, as there’s little room for breakthroughs within the law itself. The second major legal tradition is the civil law system, dominated by France and Germany—a so-called “written law” system. In these countries, laws are formulated explicitly through enacted statutes. China also belongs to this legal tradition, as do Japan, Taiwan (which was influenced by Japanese colonial rule), and Macao (since Portugal adopted a written legal system). As a result, legislation in Macao has proceeded relatively smoothly. During the founding of the People's Republic of China, our legal system was largely modeled after the Soviet Union. Transitioning directly from feudal society and the Republic era into a socialist society without establishing a solid modern legal foundation, we initially relied heavily on Soviet legal models. Later, we drew inspiration from the legal systems of Japan, Germany, France, and Taiwan as well. Given the long history of legal development in countries like France and Germany, their legal theories and systems are remarkably well-developed. For instance, France issued its Civil Code in 1876 during the Napoleonic era, and Napoleon himself considered the promulgation of the French Civil Code his greatest achievement. Similarly, Germany enacted its Civil Code in 1900. These examples underscore the deep historical roots of both nations. By contrast, China didn't adopt its own Civil Code until 2020—more than three centuries later. Moreover, we still don't have a fully developed criminal code of our own, meaning there’s still a long way to go. Today, Chinese students pursuing law studies generally head to regions with advanced written law traditions, such as France, Germany, and Japan. Of course, Taiwan is also at the forefront of legal scholarship on the Chinese mainland. During the Japanese colonial period, Taiwan had already adopted a written legal system and produced many renowned legal scholars.

II. New Civil Code

Now that we’ve discussed the background of our country’s rule-of-law state and shared a wealth of legal knowledge with everyone, I’d like to move on to a more detailed interpretation of the newly enacted Civil Code.

First, let me briefly introduce civil law. Civil law directly affects everyone’s daily life. From birth to death—whether it’s signing contracts for business, getting married, having children, or inheriting and adopting—every aspect of ordinary people’s lives is closely tied to civil law. That’s why civil law is also known as the “law of all people” or the “citizen’s law.” It’s an all-encompassing guide, a comprehensive encyclopedia of social life. Simply put, civil law governs two fundamental types of relationships: personal relationships and property relationships. In fact, in social life, a person’s interactions boil down to just these two kinds of relationships: people and things.

Our country initiated the drafting of a Civil Code four times—in 1954, 1962, 1979, and 2001—but for various reasons, none of these efforts yielded tangible results. Consequently, we adopted a “wholesale-to-retail” approach, first enacting individual civil laws. These include well-known statutes such as the Marriage Law, Inheritance Law, General Provisions of the Civil Law, Adoption Law, Security Law, Contract Law, Property Law, and Tort Liability Law. Building upon these individual laws, we have now formulated the current Civil Code. Starting from 2021, all previous individual civil laws will be completely repealed. Our new Civil Code consists of seven parts, plus supplementary provisions, totaling 84 chapters and 1,260 articles. It is hailed as China’s “encyclopedia of social life.” Among these, one part covers general principles; three parts focus on human rights—namely, personality rights, marriage and family, and inheritance; two parts deal with property rights—namely, property ownership and contracts; and the remaining part lays down provisions addressing violations of both human and property rights—the so-called tort liability.

Second, what are the highlights of the seven sections of the Civil Code?

(1) General Provisions: The structure and content remain unchanged.

The draft of the General Provisions Volume retains essentially unchanged the structure and content of the General Provisions of the Civil Code, with textual amendments made to individual articles and the “Final Provisions” moved to the final section of the code.

(2) Draft Property Rights Section: Refine provisions regarding the right of habitation and income from common areas in residential communities.

First, the system of residential rights has been refined and improved. Residential rights represent a new and noteworthy addition to the section on property rights. “Residential rights may be established gratuitously, unless otherwise agreed upon by the parties involved.” It is also stipulated that when the term of the residential right expires or the holder of the residential right dies, the residential right will cease to exist. Upon termination of the residential right, the relevant registration for cancellation must be promptly completed. This could become an important direction for the state’s future regulation of real estate: housing not only confers ownership but also grants residential rights. Moreover, detailed provisions have been made regarding subsidized housing, and in practice, this approach may better protect vulnerable groups—for instance, in divorce proceedings, there might arise a situation where ownership of the property and the right to reside are separated.

Second, it is important to ensure that revenues from common areas within residential communities are returned to the owners. Any income generated by construction units, property service companies, or other managers from the use of the owners’ common areas—after deducting reasonable costs—shall belong jointly to all owners. To whom do the revenues from elevator advertisements and exterior wall advertisements in residential communities belong? The provisions of the Property Law were not clear on this issue, leading to some conflicts and disputes. The Civil Code now explicitly states that any income derived from the use of common areas owned collectively by residents belongs jointly to the owners. This will help resolve disputes and protect the legitimate rights and interests of homeowners.

(3) Draft Contract Section: Clearly stipulates the prohibition of usury lending.

High-interest lending is explicitly prohibited. To address the prominent issues in the private lending sector and maintain a normal financial order, high-interest lending is banned, and the interest rate on loans must not violate relevant national regulations. If the loan contract does not specify any agreement on the payment of interest, it shall be deemed that no interest is payable. If the loan contract contains an unclear agreement on interest payments and the parties cannot reach a supplementary agreement, the interest shall be determined based on factors such as local or the parties’ customary transaction practices, market interest rates, and so forth. For loans between natural persons, it shall be deemed that no interest is payable. In recent years, incidents such as “campus loans” and “predatory lending schemes” have occurred frequently, drawing widespread public attention to the problem of usury. The draft Civil Code’s prohibition of high-interest lending demonstrates the state’s commitment to encouraging people to invest in the real economy, promoting high-quality economic development, and addressing the array of social problems caused by high-interest lending.

(4) Draft of the Chapter on Personality Rights: Refining provisions related to sexual harassment and enhancing protection of personal information.

First, we will refine the regulations on preventing sexual harassment. Employers should adopt reasonable measures to prevent and stop sexual harassment that is perpetrated through abuse of authority or subordinate relationships. This is a response to some current hot topics and further strengthens protection for women.

Second, protect personal information. When processing personal information of natural persons, one shall adhere to the principles of legality, fairness, and necessity, avoid excessive processing, and comply with the following conditions:

(1) Obtain the consent of the natural person or their guardian, unless otherwise provided by law or administrative regulations;

(2) Rules for the public handling of information;

(3) Explicitly state the purpose, methods, and scope of processing the information;

(4) Does not violate the provisions of laws and administrative regulations, nor the agreements between the parties.

In the digital age, how can we protect personal information? Faced with challenges such as doxxing, spam texts, and telecom fraud, the Civil Code recognizes and safeguards personality rights related to personal information and sets out fundamental rules for the use of personal data, ensuring that the handling of personal information is governed by law. This will effectively curb the rampant practice of excessive collection of personal information—eventually putting constraints on arbitrary doxxing activities. Recently, a similar case occurred in the financial sector, involving CITIC Bank.

(5) Draft of the Marriage and Family Law: Defines joint debts of spouses and clarifies that courts shall uniformly exercise the right to annul marriages involving concealed serious illnesses.

First, we need to define what constitutes joint debt of a married couple. Debts incurred with the joint consent of both spouses—such as those for which both spouses have signed or one spouse subsequently ratified—or debts incurred by one spouse in their own name during the marriage period for the daily living needs of the family, are considered joint debts of the couple. However, debts incurred by one spouse in their own name during the marriage period that exceed the family’s daily living needs are not considered joint debts of the couple. That said, this exclusion does not apply if the creditor can prove that the debt was used for the common life of the couple, for their joint business operations, or was incurred based on the mutual consent of both spouses.

When divorcing, how should the debts of both spouses be determined? Are they considered joint debts requiring both spouses’ signatures, or are they individual debts that must be jointly repaid? According to the Civil Code, joint debts incurred by spouses require the joint signature of both spouses or subsequent ratification by one spouse; alternatively, debts incurred by one spouse in his or her own name for the daily living needs of the family will also be recognized as joint debts. Otherwise, such debts will not be recognized.

Second, the circumstances under which a marriage is deemed invalid have been reasonably redefined. The provision stating that “a marriage is invalid if obtained through fraudulent means such as forging, altering, or using forged documents to obtain a marriage registration” has been deleted (thus, obtaining a marriage by using false documents does not automatically render the marriage invalid and subject to annulment). Given the difficulty for the marriage registration authority to determine whether one party truthfully disclosed to the other party their medical condition prior to the marriage registration, the provision allowing parties to request annulment from the marriage registration authority in such cases has been removed. Instead, it has been clarified that the People’s Court—rather than the marriage registration authority—shall serve as the competent body for annulling marriages involving the concealment of serious illnesses, and shall exercise the power of annulment uniformly.

In addition, the scope of “close relatives” has been further clarified, and the phrase “in-laws, including parents-in-law and in-laws who live together, as well as daughters-in-law and sons-in-law, are considered close relatives” has been deleted.

(6) Draft Inheritance Law: Adding new forms of wills.

A printed will must be witnessed by two or more witnesses. The testator and the witnesses shall sign each page of the will and indicate the year, month, and day.

Does a printed will have legal effect? In reality, printed wills are quite common, yet they often give rise to disputes. In response to this issue, the draft Civil Code addresses the practical needs by defining the validity of printed wills and specifying the formal requirements that such wills must meet. This fills a legislative gap and meets the demands of contemporary societal development.

(7) Draft Chapter on Tort Liability: Exemption from liability for acts of bravery and courage; refinement of rules governing liability for objects dropped or falling from heights.

First, there is exemption from liability for acts of bravery and righteousness. If one suffers harm while protecting the civil rights and interests of others, the tortfeasor shall bear civil liability, and the beneficiary may provide appropriate compensation. If there is no tortfeasor, the tortfeasor has fled, or the tortfeasor is unable to bear civil liability, and the victim requests compensation, the beneficiary shall provide appropriate compensation. A rescuer shall not bear civil liability if harm is caused to the assisted person as a result of voluntarily performing an emergency rescue act.

In reality, there have been numerous cases in which people who tried to help others ended up being sued themselves. At one point, the questions “Should I help?” and “Should I intervene?” troubled the public greatly. The draft Civil Code clearly defines the respective responsibilities of those who cause harm and those who benefit from their actions. It also explicitly stipulates that individuals who act bravely and righteously are exempt from civil liability under the law, thereby helping to put an end to the phenomenon of “heroes shedding tears after having shed blood.”

Second, it is prohibited to throw objects from buildings. If an object thrown from a building or an object falling from a building causes damage to others, the tortfeasor shall bear tort liability in accordance with the law. If, after investigation, it proves difficult to identify the specific tortfeasor, unless one can prove that they are not the tortfeasor, the users of the building who might have caused the harm shall provide compensation. After making such compensation, the building users who might have caused the harm have the right to seek reimbursement from the actual tortfeasor. The incidents of objects being thrown or falling from heights, which have resulted in personal injuries and property damage, have left many people deeply alarmed. How can we safeguard “safety above our heads”? The draft Civil Code includes this provision, meaning that if the responsible party cannot be clearly identified when an object is thrown or falls from a height and causes harm to others, all owners of the building could potentially be held liable for compensation. This provides victims with a “bottom-line” guarantee and also offers a legal basis for those who have compensated victims to further pursue reimbursement from the actual tortfeasor.

III. New Citizens

We’ve just discussed some basic knowledge and key changes in the Civil Code. For us, who are living in a new era and applying the new Civil Code, what impacts and changes can we expect? And what preparations should we make?

As early as the Xinhai Revolution, Mr. Sun Yat-sen proposed the Three Principles of the People—“Nationalism, Democracy, and People’s Livelihood.” These principles marked our earliest enlightenment in civil rights thinking. As we’ve just mentioned, the law is an embodiment of the will of the ruling class. Given that our political system is one in which the people are the masters of their own destiny, it follows that our laws must serve the broad masses of the population. Consequently, the rule of law will steadily improve, the mechanisms for protecting rights will become increasingly sophisticated, the costs of defending one’s rights will gradually decline, and the legal redress system will continue to grow more comprehensive. Especially as our economy and society develop step by step and the middle-class population expands, public awareness about protecting one’s rights will undoubtedly become even more refined, leading to a gradual improvement in various social malpractices. Therefore, as new citizens under the new Civil Code of the new era, in order to protect our rights and prevent infringement, we should first and foremost strive to gain a deeper understanding of the law.

The next legal changes that may occur—my personal insights—are as follows: First, the phenomenon of private lawyers will gradually become more widespread. Second, the spirit of contract will undoubtedly become more systematic, institutionalized, and standardized, and we ourselves will pay greater attention to the mindset of signing contracts in our daily conduct. Contracts will increasingly become an integral part of our lives. Third, the judicial system will continue to intensify its reform efforts; privileges will carry higher costs and greater consequences, and the rights-protection system will become even more comprehensive.

That’s all for my presentation today. Thank you, everyone!