Domestic Law Reforms in Post-Mao China

By Pitman B. Potter | Go to book overview

The German Civil Code provides that the seller is liable for defects in quality when the thing sold has defects which "destroy or diminish the value or usefulness it has for ordinary use or for the use presupposed in the contract."40 This presupposed use may be determined to exist by implication. The provisions of the Nationalist civil code are essentially the same. 41 Indeed, this seems to be the general pattern in civil law countries. 42

This would not be a difficult result to reach on the basis of the General Provisions, since it can be stated as simply the result of determining the implied intent of the parties. The effectiveness of a juristic act (the offer or the acceptance) is dependent on its reflection of the intent of the one executing it as manifested in a declaration of intention. One might argue that the General Provisions interpreted in this way ought to prevail since it is the most recent statute and is designed to serve as the basic law. Droit commun one might say. 43 The issue surely is not perfectly clear. But what is the effect of the Opinion?

There is nothing in the Opinion that relates at all to this problem. The principal provision that deals with expression of the declaration of intention is Sec. 68 which provides that sound or video recordings may be used to execute juristic acts. This seems, unfortunately, to reflect the quality of legal analysis that resulted in the Opinion.

The question one has to ask is: Does the Supreme People's Court, or whoever writes regulations under its name, understand the nature of the kind of civil law contained in the General Provisions? It seems likely that the answer is no, otherwise they would not have issued the kind of regulations they did. Indeed, they would not issue any regulations at all. A civil code does not need regulations; it needs training in legal technique so that it can be interpreted.

The mentality or mentalities behind the Opinion seems to be much more the type that in our system one finds behind the drafting and interpretation of IRS regulations, as opposed to that which one finds on the bench. This is not a good omen for the development of the Chinese legal system even if there were no political problems. Unfortunately there are those too.


Notes
1.
Wang Hanbin, "Explanation on General Principles of the Civil Code" (draft), Summary of World Broadcasts--Far East (SWB-FE) ( 22 April 1986), C1/10.
2.
William C. Jones, "Some Questions Regarding the Significance of the General Provisions of Civil Law of the People's Republic of China," 28 Harv. J. Int'l. L. ( Spring 1987), pp. 311-13.
3.
This remark is made on the basis of conversations with a Chinese official.
4.
Adopted 26 January 1988. An English translation is found in Appendix A following this chapter.
5.
For example, the many regulations issued under the Joint Venture Law. See Michael J. Moser , "Foreign Investment in China: The Legal Framework," in Foreign Trade, Investment, and the Law in the People's Republic of China, 2nd ed., ed. Michael J. Moser ( Hong Kong: Oxford University Press, 1987), p. 101. See also China's Foreign Economic Regulation

-105-

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