Wednesday, October 21, 2009

Chen on the Civil Law Tradition in China

Lei Chen, City University of Hong Kong School of Law, has posted The Historical Development of the Civil Law Tradition in China: A Private Law Perspective. Here is the abstract:
While Chinese law occupies a sui generis position according to the classification formulated by learned legal comparativists, namely, East Asian law, it is generally acknowledged 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 a year still has this feature. 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 code. The formalization and entrenchment of individual property rights can scarcely be overestimated for not only it is of great interest to Chinese jurists but also it has attracted the attention of international lawyers with a comparative perspective. The new property code is an evolution rather than a revolution, since in bringing it up to date it is meeting new social and economic needs. 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 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.

No comments: