|
At the recent “Two Meetings” legislative conclave in China, a new draft has emerged of a unified Civil Code. This new push for a comprehensive Civil Code (previously attempted in 1954, 1962, 1979 and 2001) comes nearly 40 years into Deng Xiaoping’s “Reform and Opening Up.” Some speculate that Chinese civil society was not developed enough earlier in the Post-Mao era to appropriately implement a Civil Code. To the extent that a Civil Code would set out individual rights and responsibilities, and in particular rights to Private Property, such concepts were largely too distant and impractical for the average Chinese in order to effectively implement them within a Civil Law. Also urbanization and general educational levels in the population has increased which makes a unified Civil Law not only more necessary, but easier to implement.
We are also now the better part of 4 years into Xi Jinping’s Anti-Corruption campaign, which many people had predicted would amount to only a short term political project, but now seems to be a clear and bold attempt at changing the direction of not only the party, but Chinese civil society itself. In this context the renewed push for a unified Civil Code likely comes from the top, from Mr. Xi himself.
Chinese media (Xinhua) points to the expected individual protections to be contained in the law and suggestions that such law will work to improve China’s image abroad. Xinhua itself goes so far as to refer to the planned Civil Code as China’s “Declaration of Rights.” Not language we would normally expect to see in China state media. It may be that just as the Anti-Corruption campaigned is aimed at fixing flaws in the Party so as to reinforce public trust, the renewed push for a Civil Code is aimed at fixing flaws in Chinese law and civil society, so as to reinforce the Chinese public’s trust in the society.
This also fits well with Xi Jinping’s “China Dream” and “Great Rejuvenation of the Chinese Nation,” and would suggest top level acknowledgement that effective rule of/by law begins with effective laws. This follows Xi Jinping’s speech at the Davos World Economic Forum earlier this year in which he sought to portray China as a world leader. Such leadership will be much more credible when China itself has a clear Civil Code.
The stated timeline for finalization of the Civil Code is by 2020. The issues are known and main principles to be included in the law are already identified. The unified Civil Code is said to include other specialized “books” such as contracts, family law, and property. China already has specific laws addressing each of these areas and a multitude more. Some areas will no doubt need to be fleshed out, and some conflicting provisions may need to be resolved, but it seems the main content of the law is available and the three year project seems doable.
Difficulties will include factionalism at the top and balancing state power and individual rights. Xinhua quotes Yin Tian, director of the Civil Research Center of Peking University as saying, "The major role of civil law is to draw a line between private and state rights and to prevent offense, but it doesn't mean protecting private rights at the expense of state rights." In any case, it is likely that any such issues will be resolved in favor of a stronger position for the state, and for the Party, and we should expect deference to centralized state power.
The public will likely have some kind of input or effect on the content of the law, but likely not in an overt way. In recent years the government has seemed to take an approach were it monitors and tries to satiate public opinion to a point, but prominent individual or group displays of political opinions are silenced. Chinese draft laws are often opened for public comment, (most if not all major laws in recent years have been opened to comment) and final versions do change from proposed drafts, however there are few instances in which public comment has resulted in a change to key provisions the government sees as important.
|
