China’s new civil code light on individual rights reforms
The changes are part of President Xi Jinping's wider push to align the legal system with the country's social and economic modernization.
China’s Communist leaders will this week introduce sweeping new laws that codify social responsibilities for the country’s 1.4 billion citizens while also providing some modest new protections.
The preamble of what state media is calling China’s “declaration of rights” will be announced on Wednesday and is expected to be passed by the close of the National People’s Congress (NPC) on March 15, paving the way for more detailed laws expected to be passed in 2020.
The changes are part of President Xi Jinping’s wider push to align the legal system with the country’s social and economic modernization and for some legal reformers, the code is a test of how far China will go in allowing civil liberties that might impinge upon state power.
“Civil law is the fundamental doctrine for a country’s legal system, the source of its basic essence,” Liang Ying, head of the NPC Legislative Affairs Research institute, told state media on Sunday.
“A foundational civil (law) system is an important sign of whether a country’s legal system is mature.”
Xi has made governing the nation by law a top priority of his tenure though he has drawn a line at allowing the courts to expand their power at the expense of the Communist Party’s control.
Since pledging to reform and open in 1978, China has been gradually shifting its legal system away from a socialist law towards something closer to a European-style legal system.
In 2011, China declared that “socialist legal system with Chinese characteristics” had been established, but officials themselves say China’s laws remain a work in progress.
Samaritans, Property rights
The preamble, which was released in draft form to the public in June last year, seeks to address some of the legal issues that have gnawed at public consciousness in recent years, such as who is responsible for China’s abandoned children and elderly, or what protections cover so-called “Good Samaritans”.
China’s incomplete legal system was heavily criticized for an incident in 2011 when multiple passersby ignored a toddler knocked to the ground in a hit-and-run.
Shocked observers said the lack of clarity on civil rights leaves helpers at risk of liability when coming to the aid of strangers.
Reformers also hope the code will resolve the issue of guardianship for “left behind” children whose parents work away from home and “empty nest” elderly folk who are similarly abandoned by their children.
One issue that lawyers say remains mostly unresolved in the draft code is that of property rights.
Most Chinese homeowners do not legally own the land on which their homes are built. Instead, they lease the rights to use the property for a limited number of years from the government, an arrangement that creates uncertainty for buyers.
“Whether farmers or city folk, businessman or scientists, an inability to guarantee your own property in the way that other nations allow will impact social stability,” said Li Shu, a lawyer at Anli Law Firm in Beijing.
But Philip Cheng, a lawyer at Hogan Lovells in Shanghai, said a provision in the current draft requiring civil activities to be carried out in a “fair” and “reasonable” manner could help with certain property disputes.
Many legal experts say the latest draft of general rules that form the basis of the code falls short of enshrining sweeping private rights and makes little progress in key areas including property and civil liberties.
Another issue: how far the code will go in defending the rights of individuals, known as “personality rights”, a broad term Chinese legal experts use to talk about the basic rights each individual should enjoy.
Health, reputation, image, name and freedom are included, but the term is significantly narrower and de-politicized compared to human rights, according to Chinese academics.
Proponents of individual rights have called for a dedicated section of the code, while others worry granting too many private rights could lead to revolution.
The current scope of personality rights in the draft rules makes them “seriously imbalanced”, according to Xu Xianming, deputy chairman of the National People’s Legal Association, an advocate for more personal freedoms being included in the code.
“First, the list of rights is incomplete; second, the number of rights is insufficient; third, the civil rights system is curtailed,” Xu wrote last year in an essay for the official magazine of China’s parliament.
As China’s constitution cannot be cited in court, rights must be passed by parliament before can they be protected, Xu argued.
China’s constitution on paper promises freedom of speech, freedom of the press and freedom of assembly among others. In practice, however, such provisions are not considered legally actionable and the party’s right to govern as it sees fit takes precedent.
Liang Huixing, a scholar at the Chinese Academy of Social Sciences, has repeatedly warned that writing personality rights into the civil code might lead to a “color revolution” in China, referring to mass political movements in former Soviet Union states in the early 2000s.