An Introduction to
China’s Recently Promulgated General Rules of the Civil LawBy Mr. WANG Xuanjun
Senior Partner Attorney, Beijing Yingke Law Firm, ChinaMay 8, 2017
The General Rules of Civil Law of the People’s Republic of China (GRCL) were adoptedat the 5th Session of the 12th National People’s Congress of the People's Republic ofChina (NPC) and promulgated by President Mr. XI Jinping with Presidential Order No. 66on March 15th 2017 and shall come into force on October 1st 2017.The followingintroduced are its contents, significance, highlights and shortcomings.
1. GRCL’s contents
GRCL comprises of 11 chapters with a total of 206 articles, provides the civil law's basicprinciples, civil subjects, civil rights, civil juristic acts, civil liability, limitation of actions andother fundamental matters on China’s civil law. Its exact contents are:
Chapter Ⅰ Basic Provisions
Chapter Ⅱ Natural Persons
Section 1 Capacity for Civil Rights and Capacity for Civil ConductsSection 2 Guardianship
Section 3 Declarations of Missing Persons and DeathSection 4 Individual Businesses and Lease holding Farm HouseholdsChapter Ⅲ Legal Persons
Section 1 General Stipulations
Section 2 For-profit Legal Persons
Section 3 Non-profit Legal Persons
Section 4 Special Legal Persons
Chapter Ⅳ Non-Incorporated OrganizationsChapter Ⅴ Civil Rights
Chapter Ⅵ Civil Juristic Acts
Section 1 General Stipulations
Section 2 Expression of Intent
Section 3 Validity of Civil Juristic ActsSection 4 Conditions and Duration of Civil Juristic ActsChapter Ⅶ Agency
Section 1 General Stipulations
Section 2 Entrusted Agency
Section3 Termination of Agency
Chapter Ⅷ Civil liability
?Chapter Ⅸ Limitation of Action
Chapter Ⅹ Calculation of Duration
Chapter Ⅺ Supplementary Provisions
2. GRCL’s significance
GRCL has been adopted to respond to the social needs and with consideration of Cculture and tradition. The largest breakthrough of GRCL is that it has provided theframework of China`s civil law system. GRCL is a milestone in the history of legislaChina’s civil law and greatly promotes systematization of legislation of China’s civGRCL has eliminated a lot of conflicts in existing laws and filled many loopholes anin China’s laws.
According to NPC’s legislation plan, the Civil Code of the People’s Republic of ChinaCode) will be compiled and completed in the year 2020. The recently promulgatedare general provisions and one part of Civil Code, and compilation of GRCL is onstep of the compilation of a Civil Code. In the near future, specific provisions of Civiwill be compiled with consideration of property rights, creditor’s rights from conrights of relatives, rights of succession, etc., as well as civil liabilities arisinginfringement of above mentioned rights.
Before promulgation of GRCL, a series of specific China civil laws have been promuand have come into force. The provisions of GRCL shall prevail if there are cobetween the provisions of GRCL and other specific China’s civil laws, which are ma- General Principles of Civil Law of the People’s Republic of China (GPCL, promuon 1986.04.12 and amended on 2009.08.27)
- Company Law of the People’s Republic of China (promulgated on 1993.12.2recently amended on 2013.12.28)
- Contract Law of the People’s Republic of China (promulgated on 1999.03.15)- Property Law of the People’s Republic of China (promulgated on 2007.03.16)- Surety Law of the People’s Republic of China (promulgated on 1995.06.30)- Tort Law of the People’s Republic of China (promulgated on 2009.12.26)- Adoption Law of the People’s Republic of China (promulgated on 1991.12.29，amon 1998.11.04)
- Marriage Law of the People’s Republic of China (promulgated on 1980.09.10， amon 2001.04.28)
- Succession Law of the People’s Republic of China (promulgated on 1985.04.10)3. GRCL’s Highlights
1) Natural Persons
Civil rights of a fetus were provided clearly by Article 16 of GRCL. Where a fetus isinvolved in inheritance, acceptance of gifts or any other protection of his/her interests, thefetus shall be deemed as having the capacity for civil rights. However, if the fetus is borndead, the capacity for civil rights shall be deemed as non-existent.
In order to protect the child`s independent will,to let him/her moderately participate in thesocial life, and to maintain the transaction order and security, Article 19 of GRCL providesthat lower limit age of a minor of limited capacity for civil conduct is decreased to 8 years,which is 2 years younger than 10 years old provided by Article 12 of GPCL.
The system of guardianship has been improved. Especially the system of guardianship ofadults which has been newly provided (Art. 28), to meet requirements of development ofaged society in China. It is very important to protect the rights and interests of the oldergenerations.
2) Legal persons
Legal persons provided by GRCL, one of the huge innovation, are different almostcompletely from the legal persons provided by GPCL. According to provisions by GPCL,legal persons include enterprises, official organizations, institutions, and socialorganizations. However, according to related provisions by GRCL, legal persons includefor-profit legal persons, non-profit legal persons, and special legal persons. For-profit legalpersons include limited liability companies, company limited by shares, and otherenterprises legal person. Non-profit legal persons include institutions, social organization,foundations, and social service agencies. The legal persons of official organs, legalpersons of rural collective economic organizations, and the legal persons of basic-levelpeople’s self-governing organizations are the special legal persons.
3) Civil Rights
It was first time that a positive confirmation via Paragraph 1 of Article 110 of GRCL thatnatural persons enjoy the right to privacy, compared to related provisions of Article 2 ofTort Law of PRC.
Independent personal information right was recognized by GRCL. It is provided by Article111 of GRCL that natural persons' personal information shall be protected by law. Anyorganizations and individuals who need to obtain personal information of others shallobtain the information according to law and shall ensure the information safety. It is notallowed to illegally collect, use, process or transfer the personal information of others. It isillegal to buy and sell, supply or publish the personal information of others.
In order to meet requirements in modern society, the protection of data and network virtualproperty were also recognized by law. Article 127 of CRCL provides that the provisions onthe protection of data or network virtual properties shall be abided by.
It is newly noted that the civil rights shall not be abused. Article 132 of GRCL provides thatthe civil subjects shall not abuse the civil rights to damage the national interests, the socialpublic interests or the legitimate rights and interests of others.
4) Civil liability
Normally, in the event of damage to the civil rights and interests of one person due toprotection of others' rights, the infringer shall bear civil liability, and the victim may obtainappropriate compensation. However, considering the fact that more and more people arereluctant to help others to avoid troubles with recent economic development in China,GRCL created Article 184 in order to carry forward the social righteousness, leading agood social atmosphere, hoping to reverse the lack of social moral. Article 184 of CRCLprovides that, if the rescuer voluntarily carries out emergency relief which has causeddamages to the persons in danger, the rescuer shall not bear Civil Liability.
5) Limitation of Action
In recent years, social life has greatly changed, including the increasing innovationsconcerning transaction modes and types, and the rising complicated relationship betweenrights and obligations. It is necessary to properly extend the 2-year period of limitation ofaction provided by Article 135 of GPCL. Therefore, it is provided by Article 188 of GRCLthat the limitation of action of an application to a people’s court for protection of civil rightsare 3 years, unless otherwise provided by law.
4. GRCL’s shortcoming
Although there are many highlights in the provisions of GRCL, some shortcomings doexist. Typical shortcomings are that no breakthroughs were made related to right ofpersonality. Provisions of GRCL on the right of personality are still using related provisionsof GPCL .
Nowadays, in the 21st century, the right of personality is an indispensable right, to whichthe people at large have paid more and more attention. The disputes from the right ofpersonality emerge in endlessly. It is apparently unable to meet requirements of times thatthe provisions of GRCL on the right of personality continue to use same provisions ofGPCL promulgated more than 30 years ago. It is expected that rights of personality will becompiled as an independent part of specific provisions of Civil Code in future.
If any question, please contact Mr. Wang:
Tel: + 86 13901091991
Email: wangxuanjun@sino-laws.com
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