Chapter 42 The cumbersome "Civil Code" and the meticulous heart for the people

Civil law is considered the "bible of social life". In 2001, my country's courts at all levels accepted 500,000 criminal cases, less than 100,000 administrative lawsuits, and about 5 million civil cases, accounting for more than 80% of all types of cases.The civil law is the legal criterion for regulating the property and personal relationships between equal subjects and resolving contract disputes and tort civil disputes.Because of this, civil law, criminal law, and administrative law are called the three most important basic laws of a country, and are regarded as the basic laws that regulate national construction and people's lives.

For nearly a hundred years, the enactment of civil codes in China has always been an ideal pursued by advanced legal professionals and legislative departments. In 1903, the Qing government ordered Shen Jiaben to lead the revision of laws and carry out legal reforms, which can be regarded as the beginning of the modernization of China's civil legal system. The birth of the "First Draft of Civil Law" in 1911, the "Draft Civil Law", marked the disintegration of Chinese feudal civil law and the establishment of the civil law system of the civil law system.But the draft was not implemented. In 1929, the Legislative Yuan of the Nanjing National Government set up a Civil Law Drafting Committee to start drafting a new civil code.From 1929 to 1930, the General Provisions, Creditor's Rights, Property Rights, Relatives, and Inheritance were promulgated successively. This is the Civil Law of the Republic of China.This civil law is an advanced civil law, but due to continuous wars, it could not be effectively implemented in the mainland until 1949. After the founding of the People's Republic of China in 1949, the Civil Code was abolished as the KMT's "Complete Book of Six Laws" was abolished in mainland China.Since then, New China has no civil code of its own.The original "Civil Law of the Republic of China" was only implemented in Taiwan.

After the founding of New China, the drafting of the Civil Code of our country experienced three ups and downs. The first drafting was in 1954, and it was stopped due to the anti-rightist movement in 1957; The third time was after the reform and opening up. It was drafted in 1982, and there were 4 drafts in total. Later, because the reform and opening up had just started, the economic model had not been finalized. Practice separate laws, and do not formulate a unified civil code for the time being.After that, the 1986 "General Principles of Civil Law" and "Contract Law" and other separate laws were also promulgated one after another.Today, my country has joined the WTO, the economic model has also been formed, and various separate laws are basically complete, laying the foundation for the drafting of the Civil Code. The "General Principles of Civil Law" has provided for basic civil rights, but it establishes a basic framework of civil rights, a declaration of civil rights, and lacks specific provisions.The Civil Code makes complete provisions on the civil rights of citizens and legal persons.

On January 13, 1998, Wang Hanbin, vice chairman of the Eighth National People's Congress, invited five jurists, Jiang Ping, Wang Jiafu, Wang Baoshu, Liang Huixing, and Wang Liming, to discuss the drafting of the Civil Code. Drafting of the Civil Code.For this reason, Wang Hanbin pointed out that Jiang Ping and other nine people were appointed to set up a civil code drafting group.The other 8 people are: Liang Huixing and Wang Jiafu from the Chinese Academy of Social Sciences, Wang Liming from Renmin University of China, Wang Baoshu from Tsinghua University, Wei Zhenying from Peking University, Fei Zongyi who used to work in the Supreme People's Court, and Wei Yaorong who used to work in the Legal Work Committee of the National People's Congress and Xiao Xun.

After hard work, the drafting group completed the "Group Draft" in April 2002, which was divided into 8 parts, including General Provisions, Personality Rights, Real Rights, General Provisions of Obligation Law, Contract Law, Tort Law, Family Law and Inheritance Law, with a total of 2812 articles. Later, two volumes of intellectual property rights and private international law were added to form a legislative draft with the largest number of articles in the history of Chinese legislation. On December 23, 2002, the "Draft Civil Code of the People's Republic of China" was finally discussed at the 31st Standing Committee of the Ninth National People's Congress, marking the temporary conclusion of the drafting of the 4th Civil Code of our country.

The draft civil law submitted for deliberation this time has four major features: it comprehensively enumerates the civil rights enjoyed by Chinese natural persons and legal persons, and makes more detailed regulations; it highlights the protection of personality rights and lists all kinds of personality rights , especially the inclusion of the right to privacy and the right to credit as personality rights fully reflects that China will work harder to promote the cause of human rights protection in the 21st century, and more respect for human dignity and human value; Usufructuary rights and security interests have been systematically regulated, private ownership is clearly defined for the first time, and state ownership, collective ownership, and private ownership are protected equally.Property rights are the basis of production, the premise of exchange, and the necessary condition for personal life security.At the same time, property rights themselves are also basic human rights.Only with property rights can people live a dignified and decent life.The provisions on property rights in the draft are conducive to the consolidation of my country's basic socialist economic system, the development of the market economy, and the improvement of people's living standards, and will surely mobilize the enthusiasm of hundreds of millions of people to create wealth; If the civil rights enjoyed by citizens are infringed, they will receive legal relief and compensation in accordance with the law.

Experts generally believe that if these regulations are passed, the goal of "the people's political, economic and cultural rights and interests being respected and guaranteed" put forward in the report of the 16th National Congress of the Communist Party of China can be fully realized.However, due to the complexity and size of this legislation, apart from the guiding ideology of the legislation, the members of the drafting group of the civil law were very controversial in many aspects. The more controversial general provisions on creditor's rights and intellectual property rights have not been incorporated into the Civil Code.

Jiang Ping objected to the general rules of creditor's rights stipulated in the Civil Code.He put forward four reasons: first, the concept of obligatory rights is not popular; second, China should not superstitiously believe in the German civil code system; third, the general provisions of obligatory rights are actually general provisions of contracts;Liang Huixing believes, "If the Civil Code cancels the concept of creditor's rights and the general rules of creditor's rights, I personally think that I would rather not have the Civil Code and retain the general principles of the Civil Code."

At the same time, in terms of the length of the provisions of the Civil Code, whether to make a large and comprehensive one or a relatively small one has always been controversial during the drafting process. Jiang Ping believes that the criminal law can be extensive and comprehensive. For a country with a traditional civil code, the civil code should include as many civil relations as possible. However, judging from the current situation, if we want to summarize all civil rights in the society Regulations, even including foreign-related civil rights, then, I am afraid that our civil code is not just more than 2,000 articles.If you want to make it very detailed and perfect, then this will be a large-capacity civil code that is difficult to imagine. Therefore, in this sense, he does not want to include intellectual property rights and foreign-related civil relations into the civil code .Intellectual property rights are also being debated now. We need to retain the three separate laws of intellectual property rights, copyright, patent right and trademark right. If there is a more general intellectual property right regulation in the Civil Code, there will be duplication.

In addition, during the drafting process, there were also intense disputes over whether the Personality Rights Law and the Tort Liability Law should be compiled separately.In the second part of the draft property law, after state ownership and collective ownership, private ownership is stipulated. "If the real estate or chattel of a private enterprise meets the qualifications of a legal person, it belongs to the legal person; if it does not meet the qualifications of a legal person, it shall enjoy ownership in accordance with the law or the articles of association." The fourth part of the draft personality rights law adds the right to privacy.The draft stipulates that natural persons have the right to privacy.The scope of privacy includes private information, private activities and private space.It is forbidden to infringe on the privacy of others by means of peeping, eavesdropping, spying, and disclosure.

On the evening of November 8, 2002, the "China Civil Code Forum" organized by the School of Civil, Commercial and Economic Law of China University of Political Science and Law was held in the auditorium of the new Changping School of China University of Political Science and Law.Jiang Ping, Liang Huixing and Wang Liming were the speakers. When talking about the relationship between civil law and commercial law, Jiang Ping said that civil law needs humanistic care, but the core of civil law cannot be denied. It still takes property relations and even commercial activities as an important part.The driving force for the development of civil law, from a global perspective, also comes from the development of commercial activities.It can be said that without the development of commercial activities and the impetus of the market economy itself, civil law could not have developed to the point it is today.Jiang Ping agrees that during our drafting process, everyone believes that China does not need to develop a separate commercial code.However, he believes that a general rule of business activities should be formulated.It would be a pity if a civil code representing the 21st century could not provide for commercial activities.Civil society cannot be called civil society without commercial activities. If the Civil Code is the law that expresses civil society, then the most important activity in civil society is commercial activities.We cannot ignore the content of commercial activities because of the humanistic spirit. Jiang Ping believes that we should focus on civil law, but we should fully absorb the things of the Anglo-American legal system and absorb the good things. He believes that "the impact of the Civil Code will be widespread".Once implemented in the future, the Civil Code will be the most important regulation for court enforcement.He estimates that it will take another two to three years for the Code to be passed.