Evolution of Chinese Tort Law in the Post-Codification Era: A Comparative Study Based on Children’s Tort Liability

Abstract

The Chinese Civil Code that was promulgated in 2020 has basically incorporated the pre-existing tort law without significant amendments. This raises the question as to how deficiencies identified in the past will be remedied and how tort law will further evolve. This paper tries to offer answers by examining children’s tort liability, which is the focus of the first judicial interpretation on torts issued in September 2024. The analysis produces two primary findings. First, the Chinese regime of children’s tort liability is characterized by a unity of liability in respect of a minor and his or her parents. The scheme exhibits similarities with French law, despite huge differences between the two countries in terms of liability insurance and medical insurance. German tort law, which follows completely different approaches in a number of key aspects, is, however, treated as the primary role model in China. Secondly, a discrepancy exists between legal scholarship and the judiciary in the perception of what constitutes deficiencies in tort law. In putting more emphasis on fundamental legal concepts and doctrinal coherence, Chinese scholars are often critical of the current regime governing children’s tort liability. By contrast, the judiciary does not view problems that can be solved by pragmatic adjudication guidance as deficiencies. The judiciary, which is the driving force for any improvements of the Code by virtue of its power to enact judicial interpretations, prioritizes pressing issues in practice rather than the treatment of academic concerns. The overwhelming orientation on German law might also have complicated the reform of the relevant norms in the CCC.