The existence of civil law in Imperial China (pre-1911) is debatable. Scholars such as Liang Chichao (梁啟超) and Wang Boqi (王伯琦) advocate that civil law, as opposed to criminal law, simply did not exist in Imperial China, whilst others such as Yang Honglie (楊鴻烈) hold the opposite view. It is beyond dispute that no civil code ever existed in the history of Imperial China, but there was separate legislation on marriage and debt.
Towards the end of the history of Imperial China, in 1902, Emperor Guang Xu formed a team to draft a civil code modelled on the codes found in Continental Europe. The drafting process started in 1908 and was completed in 1910. It was known as the Draft Civil Law of Great Qing (《大清民律草案》). It was the first civil code in China’s history, although in draft form. It was never enacted because the Qing Dynasty was overthrown shortly thereafter.
In April 1927 the National Government was established and in December 1928 the legislature (Legislative Yuan) was put in charge of the work of drafting the civil code. In January 1929, the Legislative Yuan set up the Drafting Committee of the Civil Code, and in February of the same year, it embarked on the compilation of the Civil Code. On 26 December 1930, the first civil code in China’s history, entitled the Civil Law of the Republic of China (《中華民國民法》), was promulgated. It contained detailed provisions of the contract law.
After the establishment of the People’s Republic of China in 1949, the Communist Party of China embarked on the drafting of a new civil code in 1954. The drafters completed the draft code in December 1956, but it was not enacted due to the anti-rightist movements and the Cultural Revolution. The political unrest halted in 1978. Instead of revisiting the old draft, China started all over again by enacting three pieces of legislation on contract law, that is, the Economic Contract Law in 1981, the Foreign Economic Contract Law in 1985 and the Technology Contract Law in 1987. You should note that the General Principles of Civil Law (‘GPCL’), enacted in 1985, is not a civil code. It simply contains the ‘general principles’, as the title suggests. It is more like the introductory chapter of a civil code that is still in the drafting stage. The English version of GPCL can be found at http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383941.htm
The three pieces of legislation on contract law were not intended to be a comprehensive set. They were enacted piecemeal to solve the immediate needs of the economic reform starting from 1979. They contained contradictory provisions, and the scope of each of them overlapped. In 1993, the drafting process of a new Contract Law started, which was intended to replace the three pieces of legislation. It is believed that the drafters of the new Contract Law, consisting of many legal academics this time, had made extensive reference to various sources, such as the UNIDROIT Principles of International Commercial Contracts (PICC),the United Nations Convention on Contracts for International Sale of Goods (CISG), the Principles of European Contract Law (PECL), the civil codes of France and Germany, and the English common law. It was passed on 15 March 1999, effective 1 October 1999, and was supplemented by the Interpretation on Several Issues Regarding the Application of the Contract Law (1) issued by the Supreme People’s Court and some other judicial interpretations on technology contract and construction contract.
In this course, ‘the Contract Law’ refers to the Contract Law of the PRC promulgated in 1999. It has not been revised since then.
In this unit, we will refer to the official English translation of the Contract Law.
Online discussion 1.1
At the drafting stage of the new Contract Law, it was proposed that the Technology Contract Law 1987 should be retained. Eventually it was superseded by the new Contract Law. Why do you think such a proposal was made? Why do you think it was finally rejected? Go to the course Discussion Board and discuss your response to this question with other students in this course.