SSRN Id3573374

Tijdschrift voor Rechtsgeschiedenis 78 (2010) 159-181
Revue d’Histoire du Droit 78 (2010) 159-181

The Legal History Review 78 (2010) 159-181
The historical development of the Civil Law

tradition in China: a private law perspective
Chen Lei*
Summary
While Chinese law occupies a sui generis position, namely, East Asian law, it is generally acknowl
edged that Chinese law comfortably wears the dress of civil law. The Chinese civil law tradition
finds its historical roots in the late Qing Dynasty (1902-1911). Long before Alan Watson’s
magisterial book on the legal transplant, China experimented with importing foreign law. More
to the point, the newly enacted Chinese Property Code, in effect for more than two years still
has this feature. The new property code is an evolution rather than a revolution, since it is little
more than an organic development of the existing law. Consequently, one would expect to find
in the new legislation many traces of its past history. It is worth noting that any legal development
is not a complete break with its past. Chinese law is no exception. A historical perspective
exploring the origin of the traditions of civil law is both necessary and useful for it can shed light
on the direction of the future development of Chinese private law.
Keywords
Civil law tradition, Chinese private law, legal history, comparative law
There is no completely separate and independent

human existence … every age establishes its own
legal world, not for itself arbitrarily, but in
indissoluble community with the entire past.
F.C. von Savigny1
* Chen Lei, LLD LLM LLB, Assistant Professor, School of Law, City University of Hong
Kong, Tat Chee Avenue, Kowloon Tong, Kowloon, Hong Kong, China; leichen@cityu.edu.
hk.
1
English translation from F.C. von Savigny, Über den Zweck dieser Zeitschrift, Zeitschrift für
geschichtliche Rechtswissenschaft, 1 (1815), 1 ff.
© Koninklijke Brill NV, Leiden, 2010 DOI: 10.1163/157181910X487350
Electronic copy available at: https://ssrn.com/abstract=3573374

160 C. Lei / Tijdschrift voor Rechtsgeschiedenis 78 (2010) 159-181
1. – Introduction
While Chinese law occupies a sui generis position, according to the clas
sification formulated by learned legal comparatists2, namely East Asian law,
it is generally acknowledged that Chinese law comfortably wears the dress of
civil law3. The Chinese civil law tradition finds its historical roots in the late
Qing Dynasty (1902–1911). Long before the publication of Alan Watson’s
magisterial book on legal transplants4 China experimented with importing
foreign law. More to the point, the newly enacted Chinese Property Code,
which has been in effect for more than a year, still has this feature which
suggests a predilection for foreign law5. With closer scrutiny the Chinese
property code of 2007 is found to be based largely on civil law models,
particularly the German and Swiss ones. This constitutes a solid step towards
the finalization of a Chinese civil code6. The formalization and entrenchment
of individual property rights can scarcely be overestimated for not only is it
of great interest to Chinese jurists, but it has also attracted the attention of
international lawyers with a comparative perspective. The new property code
is an evolution rather than a revolution, because in bringing it up to date it
is meeting new social and economic needs7. That said it is little more than
an organic development of the existing law. Consequently, one would expect
to find in the new legislation many traces of its history. It is worth noting
that any legal development is not a complete break from the past. Chinese
law is no exception. A historical perspective exploring the origin of the
traditions of civil law is both necessary and useful for it can shed light on the
direction of the future development of Chinese private law. Today’s Chinese
legal modernization is immature, albeit it is a rapidly developing and ongoing
process. China has enjoyed economic growth in recent years by steadfastly
keeping to a development strategy of gradually employing market-oriented
measures while simultaneously remaining nominally socialistic. However,
the modernization of the legal system has not occurred as easily.
Against this backdrop, an examination of the reception and historical
development of the civil law tradition in Chinese private law has taken place.
2
R. David / G. Grasmann, Einführung in die großen Rechtssysteme der Gegenwart, München
1966, p. 559. K. Zweigert / H. Kötz, Introduction to comparative law, translated by T. Weir,
3rd ed., Oxford 1998.
3
Fei Anling / Lin Qingmiao, The report of international symposium on Roman law, Chinese law
and the codification of Chinese civil law, Chinese Legal Science (zhongguo faxue), 6 (1994); Sun
Xianzhong, The reception of German Pandectist system: Introduction, decline, and revival, Chinese
Social Sciences (zhongguo shehui kexue), 2 (2008), p. 88–102.
4
A. Watson, Legal transplant: an approach to comparative law, 2nd ed, Athens (GA) 1993.
5
For more details see part.VI infra.
6
Liang Huixing, Explanatory notes on the Chinese civil code draft: law of things, Law press 2004;
Wang Liming, A draft of Chinese civil code: academic consultations, Law press 2005.
7
Chen Lei, The new Chinese property code: A giant step forward, Electronic journal of comparative
law, 11:2 (2007).

C. Lei / Tijdschrift voor Rechtsgeschiedenis 78 (2010) 159-181 161
This paper explores the reasons and significance of the reception of the civil
law tradition in early twentieth century China. Emphasis is placed on private
law because many far-reaching transplants have taken place in this area. An
examination of why China needed to transplant western law into its legal
system at this time will explain why the civil-law model rather than common
law was adopted in the country’s early efforts to modernize its legal system.
Subsequently, the historical evolution of the civil law tradition in the country
will be examined chronologically from the Republic era through the Mao
era, and then from the post-Mao era to the present. Specifically, the role of
the civil law tradition in the newly enacted Chinese property code is elaborated
upon. Finally, there will be a discussion on the prospects of the civil law
model being used in the country’s codification of its civil law. In short this
tries to answer the question, to what extent will traces of the civil law tradition
be retained when such special legislation as land registration and condominium
statutes are enacted.
This paper does not provide a comprehensive account of all the details of
the civil law tradition from a private law perspective due to its limited length.
Rather it draws on a major historical thread to present a general picture of
the past, present and future of China’s civil law tradition.
II. – The germination of civilian law in the late Qing Dynasty
1. – Historical and political background

China first began to grapple with the need to reform the legal system in
earnest in the late Qing dynasty in order to come to grips with a new modernity
(xinzheng)8. Traditional Chinese law had difficulty surviving when pummeled
by modern western capitalist governments. Particularly humiliating were
China’s military losses to Great Britain and Japan that clearly showed that
the Central Kingdom was no longer the world’s most advanced nation9. This
shook the confidence of its rulers and citizens as they had always believed in
the superiority of Chinese civilization.
From the time of the Opium War when China was forced to open its door,
western capital and goods flowed into the country. As a result of this the
peasant economy gradually disintegrated10. Foreign trade presented a dis-
couraging picture with imports increasingly exceeding exports, thus causing
a steady outflow of capital11. Meanwhile, more capitalistic private industrial
8
Xia Yong, The drifting rule of law: legal reformists’ thoughts in late Qing China, Journal of
comparative law (bijiao fa yanjiu), 2 (2005), p. 3–5.
9
Opium War (1839–1842) and Sino-Japan War (1894–1895).
10
Zhang Jinfan, On the Qing Civil Law (Qingdai minfa zonglun), Chinese University of Political
Science and Law Press 1998, p. 239.
11
I.C.Y. Hsü, The rise of modern China, 6th ed., Oxford 2000, p. 430–432.

and commercial sectors developed in urban areas12. Consequently, the new

liberal bourgeoisie called for the recognition of their social status and better
protection of their wealth, as well as the formulation of new civil and com-
mercial laws13. These economic factors initiated the legal reform in the last
decade of the Qing dynasty.
In tandem with the dramatic changes in economic conditions, social con-
ditions also began to change. First, the Chinese kinship system with its
family-based values and customs was transformed. With new schools and
new scholars introducing Western learning and condemning Confucian eth-
ics and philosophy, age-old family values were regarded as obsolescent and
feudal. Also, with the gradual disintegration of a traditional peasant economy
many peasants were displaced, this lead to some adverse affects when they
disengaged from family and clan to leave the city for a new life14. Consequently
the law fell behind the times and failed to meet new social conditions by
adjusting to new personal and clan relations15. It was imperative that with
the disintegration of the old social order a new system of norms be established.
Influenced by the west, the Qing government decided to develop a new order
based on Western law. Many hoped that the law would bolster individual
liberty and be respected instead of looked down upon as vulgar16.
From a political perspective, nationalistic sentiment had been increasing17,
but at the same time the Qing state was forced to place the humiliating terms
of judicial extra-territoriality on its political agenda18. Extra-territorial juris-
diction in some Chinese ports meant that a foreign community settled in the
ports concession areas, under the authority of a foreign power with its own
municipal government adjudicated by its own legal consul19. Extra-territorial
courts used the same system of laws as used within the foreign powers’ own
boundaries. In China it was widely held that the extra-territorial jurisdiction
was an abasement on the sovereignty. With Japan’s success in abolishing this
system by modernizing its laws the Qing government had a vicarious desire
12
Yu Jiang, Law and academia in contemporary China, Peking 2007, p.155.
13
For more details see J.K. Fairbank, The Cambridge history of China, vol 10: Late Ch’ing
1800–1911, Cambridge 1978, and M. Cameron, The Reform Movement of China 1898–1912,
London 1963.
14
Hsü (supra, n. 11), p. 428.
15
Liu Tingting, The dialogue between the traditional resources and transplanted resources,The
contemporary Civil Law legislation perspective, Yunnan Social Science (Yunnan shehui kexue),
6 (2007), p. 125.
16
F. Michael, The role of law in traditional, nationalist and communist China, The China
Quarterly, 1962, p. 133.
17
After the Boxer Rebellion of 1900, it became increasingly difficult for the Qing government
to maintain its reign and therefore it was forced to initiate the reform to strengthen the imperial
authority.
18
Yu Jiang (supra, n. 12), p. 153–154.
19
A.W. Renton, Extra-territorial jurisdiction in China, Virginia Law Review, 18 (1932), p. 726.
For more details see T.F. Millard, The end of exterritoriality in China, Shanghai 1931.

to abolish the extra-territorial jurisdiction by remodeling and remaking its

own obscure law20.
Furthermore, intellectual reorientation played an important part in furthering
reform. China’s defeat in the Sino-Japanese War (1894–95) and the subsequent
scramble convinced many young and progressive Chinese scholars of the need
for legal reforms that had long been advocated by progressive reformers21.
With the country constantly plagued by domestic rebellions, foreign inva-
sions, and natural calamities, legal reforms could no longer be delayed. In
fact reform was imperative as there was an increase in revolutionary activity
towards overthrowing the dynasty. The Qing government could not be expected
to survive by merely re-patching an old legal foundation. Only a sweeping
reform of the law could be expected to rejuvenate it.
Consequently, the Qing government established the Law Codification
Commission (falü bianzuanguan) in 1902, which was entrusted to carefully
and selectively revise Chinese laws ‘with … references to the western legal
systems after in-depth deliberations’22. The two Commissioners were Shen
Jiaben and Wu Tingfang23. Essentially this legal reform was a shrewd effort
by the Qing rulers to save their reign. Hence the legal reformers had to
emphasize loyalty to the existing monarchy. With this in mind, little could
be done in order to re-address the Chinese legal system by implementing a
western one. Nonetheless the Commission revised the feudal Qing code into
a more modern criminal law24, and simultaneously drafted a separate civil
code, the Da Qing Min Lü Cao’an, or Draft Civil Code of the Great Qing25.
It is notable that the civil code used the archetype of the German model via
Japan26. This can be seen from its statutory structure. It followed the German
20
This is a partial reason why the late Qing government adopted the Japanese legal system for
the reform. See infra, n. 45.
21
For more details see J. Judge, Key words in the Late Qing reform discourse: classical and
contemporary sources of authority, in: Indiana East Asian Working Papers Series on Language
and Politics in Modern China, J. Wasserstrom and S. Tuohy (eds), 1993–1997. Also see Yu
Jiang, The introduction and transmission of Civil law in the late Qing dynasty, Legal Studies
(faxue), 6 (2000), p.142–144.
22
F.T. Cheng, Law codification in China, Journal of comparative legislation and international
law, 6 (1924), p. 233; M.J. Meijer, The introduction of modern criminal law in China, Hong
Kong 1967, p. 5–9.
23
Shen Jiaben was a junior vice-president of the Board of Punishments and Wu Tingfang was
a former ambassador to the United States of America at that time. The Board of Punishments
was the highest judicial tribunal in the late Qing Dynasty, equivalent to the Supreme Court.
For more details see Li Guilian, The biography of Shen Jiaben (ShenJiaben Zhuan), Law Press
China, 2000.
24
Meijer (supra, n. 22), p. 45–50.
25
Zhang Jinfan (supra, n. 10), p. 249. For more details see D. Reynolds, China, 1898–1912:
the Xinzheng Revolution and Japan, Cambridge (MA) 1993.
26
Chang Hanchu, The legal history of contemporary China (Zhongguo Jindai Fazhishi), Hong
Kong 1973, p. 283–286; Yao Hui, The modernization of Chinese civil law and the contemporary
tasks, Gansu Social Science (Gansu shehui kexue), 3 (2008), p. 127–131.

Bürgerliches Gesetzbuch, (Civil Code, BGB) by dividing the code into five
books, namely ‘General Principles’, ‘Law of Obligations’, ‘Law of Things’,
‘Family’ and ‘Succession’27. In addition, the Qing Civil Code Draft followed
the German approach when it separated the civil code from a special commercial
code.
2. – Fortuity or necessity: why civil law model?

It was Britain that pounded China’s backside in the middle 19th century
and whose influence was all but irresistible, apparently including its common
law system. However, the Qing government finally chose to adopt the civil
law model. Initially, the Qing government was not clear what kind of legal
system it needed. Like a hungry person not being choosy about food, the
Qing government studied and then introduced whatever western laws they
came to know best. Throughout the Westernization period28, western laws
were introduced wholesale with no distinctions made among them29. However,
with the fortune of hindsight, one can see civil law had more influence on
the Chinese legal system than common law when the country launched its
legal modernization drive. There are a number of reasons for this.
From the perspective of Chinese history and civil custom it seemed almost
impossible for China, with a well-established legal system dating back more
than 2000 years, to introduce common law. Its historic and traditional
philosophy of articulating such general principles as the precepts of Confucius
that are based on code-like books almost precluded it from doing so. Even a
superficial examination of legal history shows that common law was only
introduced in undeveloped regions that had no legal institutions or processes30.
An example is Hong Kong: in the mid-19th century it was a small village
with a primitive and almost undeveloped legal system far from the control
of the Chinese Central Government31. This skeletal almost non-system of law
enabled Britain to introduce common law into the area32. In contrast Roman
civil law is shaped by a legislative body enacting written laws and regulations.
Moreover Roman law is concrete, clear and easily learned and for this reason
is particularly suitable for a country such as China with a long established
legal history33. As already noted China introduced civil law not only because
27
Reynolds (supra, n. 25), p. 18–28. Zhang Jinfan (supra, n.10), p. 252–261.
28
1861–1895 was a period of institutional reforms initiated during the late Qing dynasty
following a series of military defeats and concessions to foreign powers.
29
Chen Jianfu, Chinese law: context and transformation, Leiden–Boston 2008, p. 23–25.
30
H. Ehrmann, Comparative legal cultures, Englewood Cliffs 1976, p. 31.
31
Wang Zhenmin, The Roman law tradition and its future development in China, Frontiers of
Law in China, 1 (2006), p. 75.
32
Gao Hongjun, The transplant of English common law, as well as the evolution and the features
of the Common law, Journal of comparative law (bijiaofa yanjiu), 3 (1990), p. 30–32.
33
Yang Youjiong, Modern legislative history of China (jindai zhongguo lifashi), Hong Kong
1936, p. 32; Fan Zhongxin and Yefeng, The Chinese legal modernization and the Civil law

the European continent was the rising center of capitalism, and birthed the
world’s major law family, but also because Europe’s civil law tradition shares
many similar values with China’s traditional legal mind34. For example, both
legal traditions customarily create uniform codes at the national level35. Both
legal traditions used deductive reasoning for legal analysis36 and both relied
heavily on a state authority that lorded over its citizens37. Also both the
continental systems and the Chinese one shared the same propensity for
legislative generalization of principles that left the courts to hammer out and
apply principles. Within the common law, custom evolved but held a lower
position38. That said, the compilation of case law originated from evolving
legal customs. However, the Zeitgeist in China was to emulate modern western
legal systems. One way to achieve this was to discard long-standing civil
customs in Chinese society and deem them backward and obsolete. As a
consequence, in a traditional Chinese context, common law was not in tune
with the epistemological dominance of legal change that was quashing sacred
traditions. Therefore, civil law codes offered more practical advantages for a
country seeking to establish a modern legal system that took a dim view of
the natural evolution of customs. Finally, it was argued that the individualistic
common law approach did not fit into a Chinese communitarian society39.
The traditional Chinese legal mentality is family-oriented, which corresponds
to the Roman notion of pater familias40.
Another reason for the common law being less influential is that when the
Qing government determined to reform the legal system, at the beginning
of the 20th century, Britain’s international status was declining. It is likely
that the bulky common law cases, disparate and scattered legal material, and
what surely must have seemed to be almost elusive legal techniques made it
influence, Journal of Henan Institute of Politics and Law (Henan zhengfa guanli ganbu xueyuan
xuebao), 1 (2003), p. 41.
34
Zhang Jinfan, China’s legaltradition and its modern transformation, Law Press China 1997,
p. 475.
35
For example, there was a Tang code in China and the Corpus Juris Civilis in Roman law.
36
Xu Xiangmin et al., The similarities between Civil law legal family and Chinese legal family,
Journal of Ocean University of China (Social Science Section), 5 (2005), p. 48–51.
37
Ssu-yu Teng and J. Fairbank, China’s response to the West, A documentary survey 1839–1923,
Cambridge (MA) 1954, p. 145. This emphasizes the passive nature of the Qing’s legal reform
in preserving the emperor’s perpetual authoritarian rule.
38
D. Walker, The Oxford companion to Law, Oxford 1980, p. 327; R.A. Posner, The problems
of jurisprudence, Cambridge (MA) 1990, p. 355–358.
39
Take an empirical study for example, T. Ruskola, Conceptualizing corporations and kinship:
comparative Law and development theory in a Chinese perspective, Stanford Law Review, 52
(2000), p. 1599–1729. Ruskola argues that the kinship-based or clan company is socially
embedded in Chinese tradition, which is difficult to integrate with the western imported
corporation law in late Qing dynasty.
40
Wang Chung-hui, Legal reform in China, Chinese Social and Political Review, June 1917,
quoted in Chen Jianfu (supra, n. 28), p. 28.

difficult for Chinese legal scholars to comprehend41. Not only was China a
well-established and long-developed feudal society, but limbering up flexible
legal rules was absolutely forbidden by the centralized totalitarian Qing
government42. In contrast, the spirit of common law is found in case law with
judges having a modicum of freedom at the margins. However, this charac-
teristic of common law was missing in China because the Qing government
regarded any freedom of a judge to be an infringement on the government’s
authority and sanctity43. The lack of judicial professionalism along with a
paucity of legal scholars was another obstacle holding back a common law
tradition in the country44.
A further reason for adopting a civil law tradition in China was a geopo-
litical one. China and Japan had long been neighbors sharing similar cultures
and origins. Moreover, Japan was the nearest modernized and westernized
country to China. Japan’s rise as a new power in the early twentieth century
led to China’s legal modernization. One telling example was the successful
abolition of all extra-territorial rights in Japan that invigorated the Chinese
with a desire to do the same in China45. In addition, it was convenient for
young Chinese scholars to travel to Japan to study modern law. After com-
pleting their studies in Japan, they returned to China and introduced what
they had learned about Japanese laws and legal work46. Since the two countries
had similar legal cultures, values, language and history, the Chinese were
heavily influenced by the Japanese means of adapting the German Civil Code
to the country’s own distinct legal tradition47. This was able to occur due to
the fact that the Japanese model was seen as a civil law tradition that had
been tested in a Far Eastern society48. Equally important is the fact that the
Qing government began reforming its legal system by inviting foreign legal
experts to counsel the government and help to reform its laws. Most of these
experts came from Japan and helped the Qing government to examine, revise
41
R. Pound, The Chinese civil code in action, Tulane Law Review, (29) 1955, p. 289.
42
Xia Yong (supra, n. 8), p. 11–14.
43
Feng Lixia, The analysis of choice of foreign model in contemporary China, Jin Ling Law Review
(Jinling faxue pinglun), 1 (2003), p. 147–148.
44
Gao Hongjun, The transplant of English common law, as well as the evolution and the features
of the common law, Journal of comparative law (bijiaofa yanjiu), 3 (1990), p. 33.
45
G. Keeton, The new Chinese codes, Journal of comparative legislation and international law,
8 (1926), p. 225.
46
J. Fairbank and Liu Guangjing (eds), Cambridge history of late Qing (Jian qiao wan qing shi),
Chinese Social Science Press 1985, p. 404; Li Guilian, Legal reforms in contemporary China and
Japanese influences, Studies in comparative law (Bi jiao fa yan jiu), 1 (1994), p. 27–34; Yu Jiang,
The introduction and transmission of Civil law in the late Qing time, Legal Studies, 6 (2000),
p.143–144.
47
W. Jones, Some questions regarding the significance of the general provisions of Civil law of the
People’s Republic of China, Harvard International Law Journal, 28 (1987), p. 313. Wang Limin,
The reception of German civil law via Japan in late Qing period, Law Science (faxue), 1 (1997).
48
Chen Jianfu (supra, n. 29), p. 27–28.

and draft the country’s laws as well as teach law in both public and private
schools49. There is little wonder that Chinese legislation and legal theory were
influenced by Japan. Therefore, European continental countries, through
Japan, infiltrated China and strengthened their influence. Since modern
Japanese law was introduced from Germany and to lesser extent from France
Japanese law, indirectly, has a Roman law tradition. Chinese law trod, though
perhaps lightly, almost the same path as Japan in adapting the Continental
Civil Code to its own eastern legal tradition.
3. – Evaluation
Before the Qing’s legal reform the feudal code created no citizen rights,
‘no general legal framework independent of the state and no body of civil
law as distinguished from criminal law’50. It was not a code in a modern sense
but a compilation of ethical values followed by criminal penalties dealing
with the relations of the individual to the family and the state51. The framers
of the Qing legal reform attempted to create a modern civil code52. While
the Qing civil code draft separated civil matters from criminal ones, for the
first time in Chinese legislative history, civil matters were still regarded as
minor and unimportant. Still, the civil matters were regulated in a negative
sense of what was forbidden and with criminal penalties for violations, rather
than in the positive sense of civil rights53. This is understandable for the time,
but somewhat naive from today’s viewpoint. The legal reform commissioners
had to rush their work without time to absorb foreign sources and strike a
balance with the country’s long-standing feudal laws and customs. Therefore,
the civil code draft was both compendious and general. Apart from the time
pressure, the persistence of conservative ideas is another key factor in the
reform’s failure. With the introduction of western institutions centered on
individual rights, the continuance of old ethical customs became impossible.
This led to a direct conflict with the cultural conservatives. For many old-line
conservative traditionalists, the reforms were seen as shaking the traditional
values and social foundations embedded in Confucian ethics. They opposed
reforms and considered any radical change from the past to be disloyal to the
imperial dynasty54. With the conservatives’ ideological resistance, legal reform
could not be successful.
49
See generally at He Qinhua, Chinese legal history, 3rd ed., Legal Press China 2002.
50
A. Tay, The struggle for law in China, University of British Columbia Law Review, 21 (1987),
p. 563.
51
Pound (supra, n. 41), p. 277.
52
The Legal Reform Commission spent only three years sending delegates overseas learning
to translate the foreign laws necessary to finalize the draft.
53
Ph.C.C. Huang, Code, custom, and legal practice in China: the Qing and the Republic compared,
Stanford (CA), 2001, p. 29.
54
The key representative of traditionalists (Li Pai) at that time was Lao Naixuan. He expressed
strong conservative resistance against this code drafted by Shen Jiaben Commission. See Lao

Although the civil code never came into use and was not adopted by the
subsequent interim Republic government55, its significance cannot be under-
estimated. It was the first attempt in Chinese legal history to establish a
separate civil code from an all-encompassing feudal criminal code. Histori-
cally, the adoption of Western-style codes was a milestone; for the first time
the country moved away from its customary Chinese traditions and Confu-
cian values56. More significantly, this civil code laid the foundation for the
European codes to be used in the future to develop a set of Chinese civil
laws57. For example, the Qing Draft Code’s art 983 provides that the owner
of a thing has the right to use it, to receive its benefits and to freely dispose
of it within the limits of the law. Also art 984 prescribes that the owner has
the right to exclude others from interfering with the thing. It established and
modeled the contemporary Chinese civil law system on the basis of Roman-
Germanic law. This Romanized conception of ownership was a big improve-
ment in the view of the Chinese long-standing feudal system. But these early
reforms remained on paper unable to gain a foothold because the Qing Civil
Code was drafted shortly before the collapse of the dynasty and the chaotic
civil war that followed58.
III. – The blossoming of civil law tradition in the Kuomintang era
1. – Legislative background
The civil code launched by the late Qing government was not followed
from 1911 through to 1928 by the Republic government. Despite the political
instability, with frequent changes in the government, during this time the
Republic government did not stifle the efforts to formulate a modern Chinese
civil code59. During this period, the Company Law, the Bankruptcy Law and
the Negotiable Instrument Law were enacted and the civil code’s legal structure
was established60. Immediately after the Kuomintang Government took power
Naixuan, Opinions on the revised Criminal code draft (xiuzheng xinglu caoan shuotie), Capital
Jinghua Press, 1910.
55
Huang (supra, n. 53), p. 18–19.
56
L. Percy, Traditional and foreign influences: systems of law in China and Japan, Law and
contemporary problems, 52 (1989), p. 131.
57
Liang Huixing, The general part.of Civil law (minfa zonglun), Law Press China, 1996, p. 17.
58
The republican era, 1911—1949, from the establishment of China as Republic in 1911 to
the establishment of the People’s Republic of China in 1949.
59
Li Xiuqing, The new trend of the Civil law in early 20th century and the Republican Civil Code,
Tribune of Political Science and Law (zhengfa luntan), 1 (2002), p. 124–126. Under the
Republic the Qing draft Civil code was considered primitive and a special drafting committee
was appointed with the consultancy from two Japanese jurists and one French diplomat.
60
He Qinhua, The birth and development of the contemporary Chinese civil and commercial law,
Studies in law and business (fashang yanjiu), 1 (2004), p. 125.

it created a Civil Code Drafting Committee to draft a Civil Code61. However,

it was not until 1930 that the first Chinese Civil Code was promulgated.
Having revised and reexamined the Qing’s Draft Civil Code62 the Drafting
Committee drew on the experience of such Roman law countries as Germany,
Japan and Switzerland to develop its civil law legislation63. Significantly during
the period between 1912 and 1927, when there was not a written civil code,
the Supreme Court (daliyuan) did not hesitate to establish many general
principles by borrowing foreign legislative ideas. These later formed the general
law of China64.
2. – Evaluation: critical borrowing or blind copying Western law?

When the Kuomintang civil code was drafted, the prevailing worldwide
view was that social harmony took precedence over absolutist individual
rights. This was virtually the same point of view as the traditional Chinese
natural law philosophy that conciliation, mediation and compromise were
the preferred ways of settling a civil dispute. As such, the ideological and
theoretical foundation of the Kuomintang Civil Code is San Min Chu I,
which was formulated and advocated by Dr Sun Yat Sen, the founding father
of the Kuomintang (the Nationalist Party). San Min Chu I by definition,
means principles of Minzu (Nationalism), Minquan (Democracy or Civil
Rights), and Minsheng (People’s Livelihood). Due to the fact that this philo-
sophical basis is concerned with social interests the civil code is characterised
by a concern for social order rather than unbridled individual interests65. This
concept is found in several of its provisions; ‘Liberty may not be restricted
unless it is contrary to public order or good morals’ 66. And ‘a juristic act
which is contrary to public order or good morals is void’67. Perhaps most
telling are these two articles: ‘A right cannot be exercised for the main purpose
of causing injury to another’68. And ‘no retention over a movable can be made
if the retention is contrary to public order or good morals’69. This shows that
61
Pound (supra, n. 41), p. 280. It is notable that there was an attempt to legislate an interim
Republican Civil code between 1912 and 1927. This version was finally published in 1925 and
drew largely on the Qing Civil code draft. This code matters little since it was not an innovation
from the Qing code and essentially, it had not been applied widely.
62
Chen Jianfu, From administrative authorization to private law, The Hague1994, p. 14.
63
K. Bünger, Die Rezeption des europäischen Rechts in China, s.l. 1950, p. 178.
64
Guo Wei (ed.), Full texts of the Daliyuan’s (Supreme Court) explanations of case reports from
the first to the 16th year of the Republic (Zhonghua minguo yuannian zhi shiliu nian daliyuan
jieshi li quanwen), vol. 2, Law compilation and translation press; M. van der Valk, An outline
of modern Chinese family law, Peking 1939, p. 32–41.
65
Chen Jianfu (supra, n. 62), p. 19; J.C.H. Wu, Chinese legal philosophy, a brief historical survey,
p. 39.
66
Art. 17(2) of the Civil Code of the Republic of China.
67
Art. 72.
68
Art. 148.
69
Art. 930.

property entails obligations and its use should serve the public interest, an
idea that was found in the German Weimar Constitution and eventually
adopted into the current German Constitution70. As a consequence, the new
civil code was applauded as revolutionary by its drafter, the then president
of the Legislative Yuan, since it followed the latest theories of modern judicial
science71.
Second, largely based on the Qing’s Civil Code Draft, the Kuomintang
Civil Code had apparent traces of civil law, notably in its statutory framework.
It was organised into five books, namely, General Principles, Law of Obliga-
tions, Property Law, Family and Succession. This structure was exactly the
same as the Qing’s Civil Code Draft and was passed down from the German
model. It is fair to say that the German Pandectist influence was ubiquitous
in this code. One famous legal scholar of the period maintained that if one
compared the German Civil Code to the Chinese one, article by article,
ninety-five percent of the provisions of the Kuomintang Civil Code had their
origin there72. More specifically the Kuomintang Civil Code distinguished
the law of neighbourhood from servitude. The right of neighbourhood is a
limitation on the interests of individual owners. When a party needs to cross
through neighbouring property for water, drainage, ventilation, utility services,
electricity cable, sunlight, or access to their own property, the Kuomintang
Civil Code recognised and protected the right to use neighbouring land in
this manner as a ‘neighbourhood right’73. This right approximates the German
Notweg and purports to harmonize neighbouring owners’ interests. While
neighbourhood rights are extensions of or limitations on ownership in order
to limit the unfettered use of the property, servitude is a limited real right.
The Kuomintang Civil Code followed this doctrinal dichotomy from the
German Code74. Another way to prove the code’s civil law traces is that the
principal drafter of the Kuomintang Civil Code, Dr Wang Chonghui, Justice
of the Supreme Court, and later Minister of Justice, translated the German
Civil Code of 1900 into English as a reference for the Chinese75. While the
German influence was strong other codes were also consulted including the
Swiss, Japanese, French, Turkish and Soviet ones76. It is notable that the
70
Art. 14 (2) of the German Constitution.
71
J.C.H. Wu, The art.of law and other essays, juridical and literary, Hong Kong 1936, p. 39;
Hu Hanmin, Journal of the legislative Yuan, 1929, p. 1–13, quoted from Chen Jianfu (supra,
n. 62), p. 19.
72
Yang Honglie, A history of Chinese legal thought (zhongguo falu sixiang shi), vol. 2, Hong
Kong 1937, p. 369.
73
Arts 773–800 of the Kuomintang Civil Code.
74
Art. 851–859.
75
This translation was widely regarded as the Standard English translation. See Wang Chung
Hui, The German Civil Code, translated and annotated, London 1907.
76
G. Keeton The progress of law in China, Journal of Comparative Legislation, 19 (1937),
p. 209; Tien-His Cheng, The development and reform of Chinese law, Current Legal Problems,
1 (1948), p. 187.

Kuomintang Civil Code did not follow the German or Japanese method by
dividing civil law from commercial law. On the contrary, China unified civil
and commercial law into one civil code, which was useful to discard practical
inconveniences77. This was done mainly because the Chinese legislature saw
the European distinction between civil law and commercial law as being a
historical anomaly, which was not suitable for China since it never had a
mature merchant class. More significantly, unlike the Qing’s Civil Code
Draft, the Kuomintang Civil Code moved away from statutory borrowing
to jurisprudential borrowing. The drafters not only examined the provisions
at face value as they were written but also scrutinized their underlying legal
values and philosophies. Guided by the principles of San Min Chu I, the
Kuomintang reformers adopted a different legislative approach that empha-
sized the function of law from punishments to rights78. The people’s legal
rights were beginning to be recognized and protected, such as private land
ownership and females’ equal right to inherit79. After Rene David reviewed
the 1930s Chinese codification of civil law he concluded that ‘Chinese
law ... can be ranked within the family of laws deriving from the Romanist
tradition’80. This indicated the completion of the transition from the tradi-
tional Chinese law system to Roman civil law. The civil law tradition was
further entrenched.
Third, the impact of the Kuomintang Civil Code on age-old civil customs
was cumulative instead of being cataclysmic. There is a means of proportionality
applied by the Kuomintang Civil Code to deal with civil customs. There was
a disintegration of Chinese civil customs with the introduction of Western
modern Law. Many civil customs were phased out of the final version of the
Civil Code while others were retained. The Kuomintang lawmakers were far
better able to cope with the civil customs which had been embedded in
Chinese society than the late Qing legal reformers. Two examples come to
mind. The first one has to do with topsoil ownership (tian-mian quan). Simply
put, topsoil ownership occurs when a tenant uses his labour as well as other
means to increase substantially the value of a plot of land. Thus, when the
owner of a piece of barren or raw land rents it to tenants who make significant
improvements to the land, it becomes cultivated land; the tenants obtain
ownership of the land’s topsoil under permanent tenure81. With topsoil land
ownership there is dual ownership of the same plot of land, i.e. topsoil
ownership and subsoil ownership (tian-di quan). This type of two-tiered land
77
78
Huang (supra, n. 53), p. 53.
79
For females’ inheritance rights, see art. 1138. This was the first time in Chinese legislative
history artificial restraints on a woman’s legal personality were thrown off.
80
R. David and J. Brierley, Major legal systems in the world today, an introduction to the
comparative study of law, 1978, p. 23–24.
81
Guo Jian, Chinese history of property law (zhongguo caichanfa shigao), Chinese University of
Political Science and Law Press, 2007, p. 143.

ownership facilitates land transactions since the topsoil owner of the land is
not obligated to pay land taxes as their name does not appear in the state
land registries82. Although the topsoil owners are called tenants by the subsoil
owners, they are quite different from the accustomed tenants who pay periodical
rental for land use. The subsoil owner cannot discharge the perpetual rent
relationship even when the topsoil owner delays in paying the rent. However,
the topsoil owner can dispose of the land without seeking the permission of
the subsoil owner when sub-renting or taking out a mortgage83. This civil
custom enjoyed widespread popularity in rural areas of Eastern China 84.
However, the Kuomintang lawmakers were not receptive to uncodified topsoil
ownership because unitary and exclusive property rights appealed to them
and gained their support. Moreover, the Kuomintang lawmakers considered
unitary property rights as being both on the leading-edge of economic devel
opment and essential for it to take place85. Hence, the Kuomintang lawmakers
redefined this customary practice and categorized it in the Code as yongdian
quan (the institution of perpetual quitrent or emphyteusis). The second example
is the dian quan institution, which more or less corresponds with the Roman
term of antichresis86. This occurs when a borrower hands over immovable
property to a creditor as security for a loan. In terms of dian quan, the creditor
is entitled to use the security in lieu of receiving interest on borrowed money.
Historically, dian quan is a special Chinese system of use and enjoyment. In
essence, it means the transfer of secured immovable property to a creditor
giving the creditor the right to use the secured property. As such, Chinese
often call it ‘the conditional sale and purchase of land or house’ this distinguishes
it from the outright sale of the secured property87. After making an extensive
field survey about the application of dian quan it was found that the dian
quan has been deeply rooted in the Chinese society and widely applied in
daily business practices88. The Kuomintang lawmakers struck a middle way
to retain the dian quan system by incorporating dian quan as a distinct category
of Real Security rights in the Code. Simultaneously, the lawmakers capped
the duration of the right to redeem a house on an unspecified contract to
thirty years rather than indefinitely89. These two examples show the Kuomintang
Civil Code espoused the principles of a capitalist economy rather than a
82
Palmer, p. 24–26. Fu Yiling, The social and economic relations of the Yong’an village in Ming
and Qing’s dynasty, in: Rural economy under Ming and Qing’s society, Fu Yingling (ed.), p. 20.
83
Zhang Jinfan (supra, n. 10), p. 117.
84
Guo Jian (supra, n. 81), p. 144.
85
86
Chen Lei (supra, n. 7).
87
88
Sui Hongming, A survey on the civil and commercial customs in late Qing and early Republican
period (qingmo minchu minshangshi xiguan diaocha zhi yanjiu), Law Press China 2005, p. 129–
133.
89

peasant economy. The Civil Code is not a complete break with the past and
thus a balance needed to be struck when dealing with civil custom. Whether
a civil custom should be retained or rejected is dependent on its careful
examination in an extensive nationwide grassroots investigation. The Kuo
mintang government was careful to do just that90. Specifically, Article 1 of
the Civil Code stipulates, ‘In civil matters if there is no provision of law
applicable to a civil case, the case shall be decided according to custom. If
there is no such custom, the case shall be decided in accordance with the
general principles of law.’ The custom, therefore, served as subsidia for court
where there is not a direct statutory provision to resort to91. Now it becomes
much clearer that the history of the establishment and development of new
law is a history of critiquing and inheriting old and time-honored legal
traditions.
Finally, the life of a law lies in its enforcement. However, the influence of
the new civil code is narrow since the majority of Chinese peasants living in
rural areas knew little about the code and still followed age-old Confucian
principles and traditional customs92. Since the enactment of the Kuomintang
Civil Code, continuing political turmoil and a series of wars made the code’s
application and enforcement extremely difficult. Nevertheless, this early Civil
Code (1929–1931) is still applicable in Taiwan despite numerous amendments
since its enactment93.
IV. – The fall of the civil law tradition during the Mao era?
Since the People’s Republic of China (PRC) was founded in 1949, social,
political and economic conditions have substantially changed. As early as
February 1949, the CPC Central Committee announced the abolition of the
Kuomintang’s legal system94 and established what was called the Judicial
Principles in the Liberated Areas95. These principles clearly show that “Under
the democratic dictatorship of the proletariat … laws of the Kuomintang
should be abolished. The judicial work of the people should no longer be
based on the Collection but should be based on people’s new laws’96. Classic
socialist theory takes a dim view of a law rooted in the belief that bourgeois
law is nothing more than a ruling class tool to protect its privileged position97.
90
Ministry of Judicial Administration, Republic of China, The research survey of civil custom,
1930.
91
92
Jones (supra, n. 47), p. 313.
93
The most recent significant amendment was in 2007 as to the real security rights in Taiwan.
94
Wang Zhenmin (supra, n. 31), p. 76.
95
Liberated Areas are ones that had been controlled by the CCP before the Kuomintang was
completely defeated in Chinese Civil Law.
96
Mao Zedong, Communist Party report before complete liberation, 1949.
97
See a general introduction at M. Berman, Adventures in Marxism, London1999.

Hence, it was necessary for the newly established proletarian government to

dismantle the old state apparatus and establish its own legal system. This was
the guiding principle that framed China’s new legal system. Law in general
and property law in particular, were repealed without being replaced. All land
was owned by either the state in urban areas or was owned collectively in
rural areas98.
From 1949 to 1953, 148 laws and regulations were promulgated, which
governed a wide spectrum of political, civil, family, and social activities; but
no new codes were established99. The new Chinese legal system developed
employing the principles of the former Soviet Union’s decidedly socialist
legal system100. In 1954, the National people’s Congress selected a civil law
drafting group and charged it with drafting a civil code for China. Based on
the Soviet Union’s experience a preliminary draft was drawn up, which was
made up of four parts: general principles, ownership, obligation, and inher-
itance101. However, when the Sino-Soviet alliance went sour this draft was
aborted. In 1962 and 1964, a number of Chinese legal scholars and party
leaders again tried to modernize the legal system by attempting to enact a
civil code with Chinese characteristics102. These efforts were intended to move
away from the Soviet Union style and create the country’s own civil code.
Perhaps because the drafting work was directed by those with a far left ideol-
ogy there was no attempt to borrow any foreign legislative experience103. This
was the venture’s downfall as they were unable to draft a workable civil code.
This failure shows clearly that completely rejecting the idea of legal borrow-
ing is fallible, unrealistic and merely blind legislative parochialism.
Nevertheless, if China’s legal system between 1949 and 1986 is carefully
scrutinized it can be strongly related to a civil law tradition104. Some prominent
legal comparativists argued: ‘although the Socialist laws have preserved some
of the Roman-Germanic family characteristics, they make up a third family,
distinct from the common law and the civil law families’105. This argument
98
P. Randolph / Lou Jianbo, Chinese real estate law, The Hague1999, p. 8–10.
99
Tao-tai Hsia / Wendy Zeldin, Recent legal developments in the People’s Republic of China,
Harvard International Law Journal, 28 (1987), p. 252.
100
Ibid. at p. 251.
101
Tong Rou translated by J. Ocko, The general principles of civil law of the PRC: its birth,
characteristics, and role, Law and Contemporary Problems, 52 (1989), p. 152.
102
Liang Huixing, The reception of foreign civil law in China, Shandong University Law Review
(Shandong daxue falu pinglun), 1 (2003), p. 5.
103
Tong Rou (supra, n. 101), p. 154.
104
Li Rongnian, The reception of Roman law in: Roman law, China law and the codification
of civil law, Li Rongnian (ed.), 1995, p. 71.
105
R. David / J. Brierley, Major legal systems in the world today: an introduction to the comparative
study of law, 2nd ed., London 1978, p. 25; J. Hazard, Communists and their law: a search for
the common core of the legal systems of the Marxian Socialist States, Chicago 1969, p. 523; J.
Merryman, The civil law tradition: Europe, Latin America, and East Asia, Charlottesville (VA)
1994, p. 1; M. Bogdan, Different economic systems and comparative law, Comparative Law
Yearbook, 2 (1978), p. 107.

was based on the research findings that socialist laws, including Chinese ones
under Mao’s regime, had fewer private laws, gave the Communist Party a
prominent role, and had prerogative rather than normative regulations106.
However, other scholars claimed that in socialist laws ‘no basically new
concepts or legal relationships’ were found107 and there was not enough
novelty to take it out of the civil law family’108. Therefore, socialist law was
regarded as a sub-species of civil law109. While the Chinese legal system claimed
to be a socialist legal system, an examination of Chinese civil law shows that
it covers most traditional areas of the civil legal system. First, the legal tradition
of the former Soviet Union is heavily influenced by Roman-Germanic law,
which was widely recognized, even by western separationists 110. Second, there
is an increasing tendency in China that the pure public property rights and
the communist ideology-driven legal minds will die out in a near future.
Socialist law is only nominal and it is intertwined with the country’s original
legal tradition, Confucian ethics. It was the influence of the Soviet model
that resulted in the preservation and continuation of a civil law tradition,
albeit with an ideological mutation.
V. – Revival of civil law tradition after the Cultural Revolution, the

general principles of Civil law of China (GPCL)
With Mao Zedong’s death, in 1976, China began to steer a new course.
Both ordinary citizens and Party leaders were eager to pursue legal reform to
prevent the reoccurrence of policy-driven excesses. Most importantly, Deng
Xiaoping and other leaders decided that the major problem confronting China
was not a class struggle but economic growth111. For this reason, Deng Xiaop-
ing announced that to become rich was glorious and threw open the doors
to foreign investment. However, attracting foreign investment hinged on
improving the legal system and placing a greater reliance on law. Civil law is
the heart of a state’s system of regulations for business and property transac-
tions as well as issues of liability. It plays a key role in a state’s economic
development since an economy can only function well if people can trust
what is written in contracts and can trust the validity of property deeds112.
Consequently, in 1979, the Legislative Committee of the NPC organized
a civil code drafting group for the third time since 1949. Three years later,
106
J. Quigley, Socialist law and the Civil Law Tradition, American Journal of Comparative
Law, 37 (1989), p. 784–786.
107
W. Friedmann, Law in a changing society, Berkeley1959, p. 9.
108
F.H. Lawson, Book Review, University of Chicago Law Review, 21 (1954), p. 780–784.
109
J. Quigley (supra, n. 106), p. 783.
110
H. Ehrmann (supra, n. 30), p. 16–17.
111
Deng Xiaoping, Selected works of Deng Xiaoping, vol. I, p. 319–322.
112
Donahoe, The promise of law for the post-Mao leadership in China, Stanford Law Review,
41 (1988), p. 177–180.

in 1982, the group finished a civil code draft. However, a number of left-
leaning conservative party members thwarted the draft, because Party prag-
matists believed that the economic reform was just starting and social and
economic conditions were not ready for a comprehensive civil code. Subse-
quently, the view to create special statutes to regulate civil activities gained
ground. Thus, a piecemeal approach was taken by the Chinese legislature to
promulgate Economic Contract law, Foreign Contract law, Patent Law,
Trademark Law and Succession Law.
On April 12 1986 the Fourth Session of the Sixth NPC enacted the General
Principles of Civil Law (GPCL)113. This law was a milestone since it was a
hallmark in China’s civil law reconstruction after the Cultural Revolution.
The GPCL, consisting of 156 articles in nine chapters, frames the general
principles of Chinese civil law. With the GPCL China adopted a regulatory
system of economic law similar to the systems in post-war Hungary and
Poland114. This meant in civil law regulated horizontal economic relations
between equal civil subjects, while economic law that is of administrative
nature regulated vertical economic relations and management115.
The style of the GPCL is a mixture of the Pandectist School civil law con-
cepts that were indirectly borrowed from the Soviet bloc and socialist values.
In China’s socialist system property is categorised into three types, namely,
private property, state property and collective property. The level of protec-
tion differs in terms of the language in the GPCL. State property is ‘sacred
and not voidable’ while collective property is ‘protected by law’ and only
‘lawful’ private property can be protected116. When the GPCL is examined
provision by provision the finding is that it is not conceptually new. Rather,
it was a revisiting process to classical civil law institutions as laid out by
Chinese jurists in the Republican era. For instance, the GPCL article 71 still
defined ownership as including rights to possess, use, profit and dispose of
the owned property. Also, the dogmatic distinction between neighbourhood
rights and servitude was adopted117. In this sense the GPCL was not a new
civil law with Chinese characteristics118. On the other hand, the GPCL was
permutated with a distinct socialist ideology. Using one drafter’s words, the
GPCL ‘reflects the demands of socialist commodities relations’. He was taking
into account that the PRC’s economy at that time was a planned socialist
113
It came into effect on January 1, 1987.
114
Tong Rou (supra, n. 101), p. 158.
115
Ibid. at p. 159.
116
Arts 73 and 74 of the GPCL.
117
Art. 83 of the GPCL.
118
E. Epstein, The theoretical system of property rights in China’s General Principles of Civil Law:
theoretical controversy in the drafting process and beyond, Law and Contemporary Problems,
52 (1989), p. 180.

commodity economy with socialist public ownership as its foundation119. For

example, state enterprises enjoyed special protection on the grounds that they
received free property from the state and sold products produced in the same
way as private enterprises sells products. Moreover, following German civil
law, the GPCL established the concept of legal person as an economic orga-
nizational form to facilitate economic activities. However, the Chinese GPCL
does not distinguish between a public and private legal person as the Germans
do.
Furthermore, the GPCL was written in very abstract and general terms,
which, for the most part, prevents it from being referred to directly to resolve
practical disputes. In Germany and some other European countries, the
general principles are called a ‘General Part’ of the Civil Code; these have
been supplemented with Special Parts addressing specific institutions and
situations120. In contrast, the Chinese GPCL broadly covers state, collective
and personal property rights, contractual obligations, intellectual property
rights, marital rights, unjustified enrichment, tort liability, and legal remedies.
Therefore, in practice, the GPCL was supplemented with implementation
regulations and Supreme Court pronouncements.
The GPCL’s theoretical framework was deeply rooted in a civil law tradition
borrowed and influenced by German Pandectists. While the GPCL was a
groundbreaking achievement in Chinese civil law history and at its inception
was quite modern, today the GPCL is outdated, overly simple and fails to
meet the needs of an ever changing and fast growing Chinese economy. It
has surprised almost everyone that the GPCL has lasted so long without any
fundamental changes being made to it.
VI. – Civil law tradition under the new Property Code

After 1949, the first attempt to draft a civil code occurred in the 1950s,
followed by attempts in the 1960s and again in the 1980s. The enactment of
a property code was an academic pursuit for five decades. Finally, the property
code was passed in 2007 after a lengthy process of debate and pruning. This
new code is a further development of the country’s civil law tradition whose
main influences come from Germany, Japan, and Taiwan121. Even a cursory
glance at the code reveals marked similarities in its structure and content with
continental European civil codes. In this section three examples are briefly
119
Tong Rou (supra, n. 99), p. 160. The final provision of the GPCL contains only 156 articles
compared with 501 articles in the first draft and 465 articles in the fourth draft.
120
Henry Zheng, China’s new Civil Law, American Journal of Comparative Law, 34 (1986),
p. 672–673.
121
The Republican Civil Code enacted under the Kuomintang government in 1930s was
referred to frequently when the property code was drafted.

examined to illustrate a trace of the civil law tradition. The first example
illustrates China’s civil law tradition in the code’s statutory structure. The
property code contains five sections covering nineteen chapters, namely,
Section One: General Principles; Section Two: Ownership; Section Three:
Right of Use and Enjoyment; Section Four: Right of Security; and Section
Five: Possession. This structural layout resembles the structure of the Sachenrecht
(law of things) in the German BGB and the Japanese Civil Code.
The second example involves the titling of the property code. When the
code was drafted there was a raucous debate over the titling of the law of
things (wuquan fa) and the titling of the law of property (caichan fa)122. The
term ‘property’ has highly emotional overtones and so it is almost impossible
to define accurately and exhaustively123. It can refer either to the right to
property (I have a house on my property) or property as the subject of the
right to property (I have property (ownership) of a house). This latent confusion
between rights and its object has its origin in Roman law as well as in other
jurisdictions124. Some scholars maintain that it is illogical to define property
as the object of a right and simultaneously asserts that a right can also be
property and thus the object of a right125. By contrast, the meaning of the
word ‘thing’ is less complex. There is no intrinsic confusion between a particular
right and its object in the word ‘thing’126. With this in mind Chinese lawmakers
followed the German and South African approach to name the code after a
law of things127. However, what is important is the confusion is understood128.
Significantly, the law of things restricts the notion of property to corporeal
things and therefore incorporeal things are excluded from the Chinese property
code129.
The third example involves a civil law feature that is found in the principle
of bona fide acquisition (acquisition in good faith) that is included in the
code. Bona fide acquisition occurs when a purchaser acquires the ownership
122
Liang Huixing, To enact a law of things or a law of property, in: Studies on the Real Property
Law of China, Cai Yaozhong (ed.), Law Press China 2002, p. 86–140.
123
C.G. Van der Merwe and M J. de Waal, The Law of things and servitude, Durban 1993,
p. 5.
124
Cohen, Transcendental nonsense and the functional approach, Columbia Law Review, 35
(1935), p. 815.
125
Liang Huixing (supra, n. 27), p. 90–91.
126
However, some judges in common law jurisdictions had a different view and took the
position that property can be a means of control. In Yanner v Eaton (1999) 201 CLR 351 at
[18] (High Court of Australia), it is declared that ‘[m]uch of our false thinking about property
is itself a thing or resource rather than a legally endorsed concentration of power over things
and resources’. In this paper, such a philosophical debate on the nature of property from
different jurisdictions is sidestepped in order to keep the argument focused and flowing.
127
For German law, it is called Sachenrecht while in South African Sakereg is used.
128
G. Gretton, Owning rights and things, Stellenbosch Law Review, 2 (1997), p. 180.
129
As to the civil law legal system, the French law includes the corporeal as well as the incorporeal
in the concept of property.

of a thing without leaving any room for the original owner to make a claim
for its return. In the code, three conditions must be met for acquisition in
good faith: (1) the bona fide purchaser must not be aware that the transferor
is not legally entitled to transfer the property; (2) the purchase price must be
reasonable; and (3) the transfer of the property must be registered if there is
a requirement to do so. Failing the latter requirement, possession of the
property must be transferred130. Under such circumstances, the original owner
is entitled to claim damages from the bad faith possessor who maliciously
transferred the property131. Moreover, the original owner has a right to claim
back what is lost from the bona fide purchaser within two years since the
original owner ought to know about such a situation132. However, to gain
the public’s confidence in open market sales, the original owner must reimburse
the purchaser the amount paid if the bona fide purchaser acquired the property
in the open market or through an auction133. The general principle of good
faith is best illustrated with the German BGB134. In addition, the Chinese
property code incorporated Art.932 (2) and Art. 936 (2) of the German BGB
that prevents the bona fide acquisition of movable property when there is
gross negligence (lata culpa)135.
VII. – Concluding remarks

The civil law tradition underpins Chinese private law. From both a historical
and a comparative perspective civil law is an important part of the Chinese
legal system. Many Chinese jurists value civil law doctrines and hold statute
law in high esteem. They pay special attention to studying civil law which is
regarded as both useful and necessary to modernize the Chinese legal system.
Yet, the civil law tradition was not just a historic incident in China. When
China needed to import foreign legislative ideas in the late Qing period it
was no surprise, but a natural choice, for there were conceptual and doctrinal
similarities between feudal Chinese law and modern continental civil law.
Additionally, Chinese legal language, legal culture, political structure and
colonial history are of a kind that allowed for Japan to provide a convenient
reference. Moreover, China’s reception of the civil law tradition was neither
a function of colonization nor driven by the admirable prestige of civilian
130
Art. 106 (1) & (2) of the Property Code.
131
Art. 106 (3) of the Property Code.
132
Art. 107 of the Property Code.
133
Ibid.
134
German BGB Art. 892(1): for immovables, only actual knowledge gives rise to liability;
art. 932 (2), for movables: gross negligence gives rise to liability. See also E. Mckendrick, Good
faith: a matter of principle, in: Good faith in contract and property law, A.D.M. Forte (ed.),
Oxford 2000, p. 40.
135
Art. 108 of the Property Code.

codes136. In fact, there was no time to fancy the prestige and only after the
civil law system had been introduced did Chinese government and jurists
start to value its prestige. China’s reception was not passive, but rather was
an intentional policy as the legal and academic communities fully realized
the country’s need for civil law.
When drafting a property code, Chinese law was modernized to keep it
within the parameters of international practices. This was patently evident
after China’s entry into the WTO. Quite simply it was necessary for China
to adopt internationally accepted norms, regulations and trade practices.
With this in mind, Chinese lawmakers necessarily had to resort to civil law
jurisdictions as well as common law countries when framing the property
code. For instance, the property code adopted the English mortgage system
that is, often termed atypical real security rights in civil law terms, because
of the vital role mortgages played in the booming housing market137. The
Draft of China’s Civil Code138 does not contain the general provisions for
the law of obligations as does the German formula139. There are other such
examples as the Torrens land registration system and condominium law that
show the increasing influence of common law. There is the expectation that
when special statutes are drafted, the Torrens registration system and the
Anglo-American condominium acts will be taken seriously and will often be
referred to and examined. To be specific, the new property code endorses the
threefold-unity theory that the ownership of a unit is inextricably linked to
an undivided share in the common areas and facilities as well as membership
in an owners’ association that manages and administers maintenance. For
this reason the code has a separate chapter entitled ‘strata title in multi-
ownership buildings140. This single chapter is considered inadequate to resolve
all problems connected with condominiums, therefore, it is expected that a
detailed special statute on apartment ownership needs to be enacted in the
future. When enacting the special condominium statute, the Common law
statutes such as the New South Wales Strata Titles Act and Singapore Land
(Strata) Title Act may be considered more relevant since they are more con-
crete and easy to apply in dealing with the day-to-day administration and
management of multi-storey buildings, This tends to show that legal develop-
ment is less influenced by dogma than by expediency. To summarize, Chinese
private law is still in a comparative-law-in-action process in its need to be
136
M. Graziadei, Comparative law as the study of transplants and receptions, in: Oxford handbook
of comparative law, M. Reimann and R. Zimmermann (eds), Oxford University Press 2006,
p. 456–458.
137
Chen Lei (supra, n. 7).
138
At the time of writing, this work remains only an academic pursuit without parliamentary
deliberation. It was published in 2002.
139
Z. Kitagawa, Development of comparative law in East Asia, in: Oxford Handbook of comparative
law, M. Reimann and R. Zimmermann (eds), Oxford 2007, p. 257.
140
Arts 70–83 of the Property Code of 2007.

substantiated. During this process, Chinese lawmakers, ever so slowly, are

becoming open-minded and borrowing both from civil law countries’ and
common law countries’ legislative experience, as well as borrowing from
mixed jurisdictions’. This pragmatic approach is developed on the conceptual
understandings of the civil law structure. Clearly, no jurisdiction can efface
its legislative history holistically. In this sense, Chinese private law will remain
congruent with the continental civilian law families.
The early reception of the civil law tradition in China is a different story.
There was a tendency to phase out the existing law because it was thought to
be feudal and obsolete. Fortunately, not all civil customs were abandoned
for a few still remain. They are a living part of our life and are in every corner
of our society which is inextricably intertwined with book law based on legal
borrowings. These civil customs should not be regarded as extra-legal, instead,
they constitute an integral part of Chinese legal pluralism. Modern society
needs to realize that a modern code cannot look with disdain on the cultural
and social context in which it operates.


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Tijdschrift voor Rechtsgeschiedenis 78 (2010) 159-181

Revue d’Histoire du Droit 78 (2010) 159-181

The historical development of the Civil Law

There is no completely separate and independent

F.C. von Savigny1

© Koninklijke Brill NV, Leiden, 2010 DOI: 10.1163/157181910X487350

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II. – The germination of civilian law in the late Qing Dynasty

1. – Historical and political background

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and commercial sectors developed in urban areas12. Consequently, the new

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to abolish the extra-territorial jurisdiction by remodeling and remaking its

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2. – Fortuity or necessity: why civil law model?

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III. – The blossoming of civil law tradition in the Kuomintang era

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it created a Civil Code Drafting Committee to draft a Civil Code61. However,

2. – Evaluation: critical borrowing or blind copying Western law?

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Hence, it was necessary for the newly established proletarian government to

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V. – Revival of civil law tradition after the Cultural Revolution, the

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commodity economy with socialist public ownership as its foundation119. For

VI. – Civil law tradition under the new Property Code

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VII. – Concluding remarks

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substantiated. During this process, Chinese lawmakers, ever so slowly, are

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