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A Translation of the Fourth Draft Civil Code (June 1982) of the People's Republic of China

A Translation of the Fourth Draft Civil Code (June 1982) of the People's Republic of China 193 A TRANSLATION OF THE FOURTH DRAFT CIVIL CODE (JUNE 1982) OF THE PEOPLE'S REPUBLIC OF CHINA WILLIAM C. JONES Professor of Law, Washington University, School of Law, Saint Louis, Missouri Note on the Text and Translation The old laws of the Republic of China were repealed as one of the first acts of the new government of the People's Republic of China. These included civil and criminal codes and codes of civil and criminal procedure. Apparently there was considerable effort to draft new codes to replace them during the early 1950s, and 1960s, but no codes ever appeared. In the period since the death of Mao Zedong, a number of new laws and codes have appeared, in- cluding a Criminal Code, a Code of Criminal Procedure and a Code of Civil Procedure. I The Civil Code itself, however, has not been promulgated, al- though there have been frequent reports that it was being drafted. It is clear that drafts were being circulated in legal circles in China for comment. Some have been seen by westerners, but none has been published either in- side or outside China. The draft whose translation is being published here is labelled "fourth" and dated June 1982. It is said that a fifth draft has been circulated, but I have not seen it nor do I know of anyone who has. It is also commonly said in China at the present time (late 1983) that a civil code will never be promul- gated. Instead, parts will be taken out of it and promulgated separately on the model of the Marriage Law and the Economic Contract Law. It seems highly unlikely that the document presented here will be promulgated preci- sely in this form. On the other hand, this draft does not seem to vary greatly from its predecessors, and is in line with the materials used in courses in civil law in the law schools. Consequently, I think it is worth publishing to show at the very least what a substantial group of responsible Chinese jurists think about civil law. The translation probably has more than the usual number of flaws. The copy of the text that was used was very hard to read for one thing. In a few places it was indecipherable. For another, it was not possible, in view of the circumstances under which the translation was made, to get any help from others either in the course of the work or in revision. Doubtless there are many errors as a result. Another problem arises out of the lack of generally accepted equivalences for many Chinese legal terms. Since the text is not an actual statute, however, and the translation is only published in order to provide some information about how Chinese jurists are approaching civil law, it is hoped that these many defects will not prevent it from being of some use. Words not in the original that have been supplied by the translator are indicated with brackets as []?. Where a word could not be read at all, there is an underlined blank space: Chinese words in pinyin romanization enclosed in parentheses are the Chinese words translated by the immediately preceding English words. As, "(Che Xiao)". Note 1. For discussions of the situation prior to 1982, see Foster, "Codification in Post-Mao China", 30 Am.J.Comp.L. 395, and Kato, "Civil and Economic Law in the People's Republic of China", id. at 429. The Economic Contract Law was adopted on 13 De- cember 1981. For translation, see 2 China Law Reporter 61 (1982). http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Review of Socialist Law (in 1992 continued as Review of Central and East European Law) Brill

A Translation of the Fourth Draft Civil Code (June 1982) of the People's Republic of China

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Publisher
Brill
Copyright
© 1984 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0165-0300
eISSN
1875-2985
DOI
10.1163/187529884X00206
Publisher site
See Article on Publisher Site

Abstract

193 A TRANSLATION OF THE FOURTH DRAFT CIVIL CODE (JUNE 1982) OF THE PEOPLE'S REPUBLIC OF CHINA WILLIAM C. JONES Professor of Law, Washington University, School of Law, Saint Louis, Missouri Note on the Text and Translation The old laws of the Republic of China were repealed as one of the first acts of the new government of the People's Republic of China. These included civil and criminal codes and codes of civil and criminal procedure. Apparently there was considerable effort to draft new codes to replace them during the early 1950s, and 1960s, but no codes ever appeared. In the period since the death of Mao Zedong, a number of new laws and codes have appeared, in- cluding a Criminal Code, a Code of Criminal Procedure and a Code of Civil Procedure. I The Civil Code itself, however, has not been promulgated, al- though there have been frequent reports that it was being drafted. It is clear that drafts were being circulated in legal circles in China for comment. Some have been seen by westerners, but none has been published either in- side or outside China. The draft whose translation is being published here is labelled "fourth" and dated June 1982. It is said that a fifth draft has been circulated, but I have not seen it nor do I know of anyone who has. It is also commonly said in China at the present time (late 1983) that a civil code will never be promul- gated. Instead, parts will be taken out of it and promulgated separately on the model of the Marriage Law and the Economic Contract Law. It seems highly unlikely that the document presented here will be promulgated preci- sely in this form. On the other hand, this draft does not seem to vary greatly from its predecessors, and is in line with the materials used in courses in civil law in the law schools. Consequently, I think it is worth publishing to show at the very least what a substantial group of responsible Chinese jurists think about civil law. The translation probably has more than the usual number of flaws. The copy of the text that was used was very hard to read for one thing. In a few places it was indecipherable. For another, it was not possible, in view of the circumstances under which the translation was made, to get any help from others either in the course of the work or in revision. Doubtless there are many errors as a result. Another problem arises out of the lack of generally accepted equivalences for many Chinese legal terms. Since the text is not an actual statute, however, and the translation is only published in order to provide some information about how Chinese jurists are approaching civil law, it is hoped that these many defects will not prevent it from being of some use. Words not in the original that have been supplied by the translator are indicated with brackets as []?. Where a word could not be read at all, there is an underlined blank space: Chinese words in pinyin romanization enclosed in parentheses are the Chinese words translated by the immediately preceding English words. As, "(Che Xiao)". Note 1. For discussions of the situation prior to 1982, see Foster, "Codification in Post-Mao China", 30 Am.J.Comp.L. 395, and Kato, "Civil and Economic Law in the People's Republic of China", id. at 429. The Economic Contract Law was adopted on 13 De- cember 1981. For translation, see 2 China Law Reporter 61 (1982).

Journal

Review of Socialist Law (in 1992 continued as Review of Central and East European Law) – Brill

Published: Jan 1, 1984

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