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A historic legal milestone – China's general provisions of civil law

By Donald J. Lewis | | Updated: 2017-03-14 10:36


The ideological baggage associated with so-called “enterprise legal persons” in the prior GPCL has been refreshingly jettisoned - a promising endorsement of market-based economic reforms. Rescuer protection has been added to the Torts chapter of the General Provisions to encourage greater civil responsibility amongst Chinese citizens in their response to emergency situations.

Under the General Provisions, Chinese individuals will enjoy new privacy and data protection rights as regards their online activities.

Moreover, on account of the explosion in Chinese internet usage and e-commerce, the General Provisions now recognize “virtual property” rights.

In line with China’s abiding commitment to sustainable development and the green economy, this new civil legislation also, importantly, contains provisions on ecological conservation, as well as, obligations which civil subjects undertake to protect the environment.

Although China is described as a civil law country, in the tradition of the continental European countries (especially France and Germany), many of its laws and legal concepts display an assortment of socialist law and common law elements with distinctive Chinese characteristics. For example, the PRC Contract Law is a composite of civil and common law rules and principles, derived in significant part from UN CISG.

The PRC Company Law and related enactments, based to a large extent on the German codes, nonetheless reflect significant United States and United Kingdom common law influence in the form of derivative actions and independent directors. Such an amalgamation presents issues as regards the overall doctrinal coherence of the forthcoming PRC Civil Code.

The adoption of the General Provisions ranks amongst the most important developments in the PRC’s legal history and given its laudably modern and humanistic orientation, represents a manifest commitment to further deepen market reforms and establish the rule of law in China.

This is particularly the case when one adds to the mix the panoply of state-owned enterprise (SOE), especially Central SOE, reform measures just announced by Premier Li Keqiang in this year’s Government Work Report. Such dynamic market-oriented actions should give pause to even the most hawkish conservatives in the US government.

They also serve as very palpable grist in China’s favor as regards the current dispute before the World Trade Organisation concerning whether China deserves to be accorded Market Economy Status (MES) like the rest of the WTO Membership - something the US, European Union, and Japan, at present, curiously oppose. They may now wish to reconsider their positions.

The author is an adjunct professor at the University of San Francisco School of Management.


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