Domestic Law Reforms in Post-Mao China

By Pitman B. Potter | Go to book overview

3 The Significance of the Opinion of the Supreme People's Court for Civil Law in China

William C. Jones

As with any society, civil law in China provides a basis for articulating principles and rules for regulating civil and economic relationships. The General Principles of Civil Law, enacted belatedly in 1986, summarized and reformed what previously had been a loosely integrated set of regulations and informal norms for Chinese social and economic life. The General Principles were incomplete, however. In an example of judicial law making, the Supreme People's Court's Opinion concerning the General Principles of Civil Law served to expand on this earlier effort.

When the General Provisions of Civil Law was enacted, Wang Hanbin, chairman of the committee that supposedly drafted it, admitted that it was not complete. He stated that it was supplemented by other statutes, mentioning the Patent Law, the Trademark Law, the Marriage Law, the Succession Law, the Economic Contracts Law, and the Foreign Economic Contracts Law, and he indicated there would be others. He also admitted that there would be gaps, but did not indicate how these would be filled. 1 It has seemed to me, as I have stated previously, that the implication was that they would be filled by references to general principles of civil law, chiefly by means of treatises--Chinese and foreign--although there would probably also be special statutes that would be enacted subsequently. 2 To a certain extent this is what has happened. The totality of civil law remains something of a jumble, however, since the statutes do not seem to have been drafted with much reference to each other, and consequently do not mesh.

The Chinese are very conscious of this, and have, it is said, made some efforts to prepare revisions of these statutes to eliminate the contradictions. 3 This could be taken as affirming a belief that there should be a complete, integrated civil code in fact, if not in name. That has not happened yet, however. The result is

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