Die Kodifikation eines Zivilgesetzbuches in China: Einige Probleme mit Blick auf die Systematisiserung und Verwissenschaftlichung der Gesetzgebung

Abstract

The Codification of Civil Law in China: Challenges in Fashioning Systematic and Scholarly Legislation

Currently, the National People's Congress is in the process of formulating a Chinese Civil Code. The author of the present article participated for many years in the creation of civil law legislation and was also consulted as an expert in connection with the current codification efforts. In the light of this background, he argues that the codification process needs to devote greater consideration to certain aspects of the rule of law, not least the scholarly and systematic nature of legislation. The paper first gives an overview of Chinese Civil Code legislation enacted since 1949 in order to present fundamental considerations regarding the scholarly and systemic underpinnings of the codification endeavour. Here, a key question asks what objects can be regulated in a civil code. Their regulation must rely upon a basic logic, and in this respect it is worth looking at the historic foundations of Roman law. Subsequently, the article addresses specific legislative tasks that are necessary for the elaboration of legal rules, particularly the ordering of legal terminology, typifying norms and the technique of factoring out general rules (Ausklammerungstechnik). As a core requirement, appropriate legislation should exclude any risk of judicial arbitrariness, create legal uniformity and promote social progress. On this basis, the author presents some proposals for the General Part of Civil Law that have been formulated by the research team of the Chinese Academy of Social Sciences.