The German genesis of Chinese law

German legist Gustav Radbruch referred to the acceptance of Roman law by his contemporary German lawmakers in the 19th century as being an unprecedented historical process, since it was an instance of a great nation abandoning its own law to adopt an exotic millennial code in a foreign language. However, when he made this remark, he might not have been aware that another great nation - China was experiencing a similar historical process.

Indeed, during the late 19th and early 20th century, when the German Civil Code was being issued and implemented, China too was seeking political and legal reforms. The newly born German Civil Code became the model for Chinese legists.

Of course, apart from the German legal system, those of France and Switzerland, and later the Soviet Union, also had a great impact on China's legal system reform.

In fact, Germany's acceptance of Roman law directly helped the German law, especially German civil law, develop rapidly and maintain its unique style.

The German Civil Code has had a positive and profound impact not only on German social life, but also on the development and promulgation of civil law systems in the entire world.

Indeed, an introduction of German, French and other foreign legal systems is one of the factors that enabled Chinese law to eventually break away from traditional legal culture, leading to the gradual establishment of an entirely new and modern legal system.

Civil law system

There are two reasons why the Chinese legal system followed the mode of civil law systems.

First, historically speaking, the Chinese legal system features statute laws; therefore, the introduction of civil law systems would be more convenient, while the prejudication of common law systems would not be compatible with Chinese historical tradition.

Second, the civil law systems, with German law as a representative, have a strict logic system, so it is easier for other countries to accept. In particular, the typical German philosophy reflected in the German Civil Code deeply attracted China's legists.

On the other hand, the discretional power of common law systems, practiced in countries like the United Kingdom and the United States, appears to be not so standardized. Therefore, it is not easy for other countries to directly emulate them.

Visible influence

Regarding legislation, some concepts of General Principles of the Civil Law of China, such as the capacity for rights, capacity for conduct, legal persons, agency, creditors' rights, and unjustified benefits, stem from the German Civil Code.

Some major systems of China's Guaranty Law like suretyship, mortgage, pledge, lien and deposit can be found in the German Civil Code.

Some specific norms of Guaranty Law like the scope and modes of suretyship, mortgage of maximum amount and conditions of lien have requirements similar to the German Civil Code.

Some major concepts and systems of China's Contract Law are also borrowed from the German Civil Code. For example, regarding the principle of good faith, the German Civil Code asserts that: the debtor is bound to effect performance according to the requirements of good faith, giving consideration to common usage. The Chinese Contract Law provides that: the parties shall abide by the principle of good faith in exercising their rights and performing their obligations.

(China Daily 08/25/2007 page4)