Fifteen Eighty Four

Academic perspectives from Cambridge University Press


Ideology, Legal Transplants and Moral Foundation, A Scholarly Account of the Chinese Civil Code

Pietro Sirena, Hao Jiang (Primary Author)

The passage of the Chinese Civil Code in 2021 was a monumental event both for China and the international community. Yet, it is a daunting task to present a scientific account of the Code to a readership in both worlds. It is difficult for private law experts in the West to truly understand Chinese law without context if they can only rely upon a superficial reading of the text. It is also difficult for Chinese scholars to understand their law if they only seek internal explanations for incompatible yet co-existing doctrines, which were likely the products of legal transplants from different sources. Moreover, any civil law would have to serve the socioeconomic context in which it operates.

This forthcoming edited volume on the Making of the Chinese Civil Code might well be the first comprehensive assessment of the Code in the English-speaking world. At the encouragement of my co-editor, Pietro Sirena, I embarked on this project shortly after the Code was promulgated. We decided to approach the Chinese Civil Code through comparative law and cross-disciplinary research. The vision of this book, as I set out in the first chapter, is to trace the root cause of several persistent problems to the source of tensions. Specifically, they come from the tensions between the rise of private law and the still dominant state sector, the contradictions among legal transplants, the incompatibility between doctrinal innovations and the existing structure, and the clash between distributive justice—the foundation of Chinese moral philosophy— and commutative justice—the foundation of Western private law.

We were incredibly fortunate to have gathered a group of leading scholars to join this endeavour from mainland China, Hong Kong, Italy, Germany, the United Kingdom, and the U.S. In the summer of 2021, despite severe Covid restrictions still present, through a Bocconi Law School conference, we were able to meet online and discuss each of these projects in detail and share scholarly insights from a wide spectrum of experiences including Chinese scholars involved in the drafting process, Western scholars who specialize in Chinese law, and leading Western private law scholars who approached Chinese civil law for the very first time. This group are not only extremely diverse in origin and experience but, more importantly, in expertise and methodology.

We went far beyond what is in the text. The breadth of expertise involved allowed us to carefully examine the core doctrinal changes through comparative law tools and take a close look at the ideological, historical, sociological, and philosophical dimensions of Chinese civil law. Specifically, contributors explained the development of Chinese law through the lens of Soviet law (Gianmaria Ajani), evaluated the unintended negative consequences of applying liberal contract rules to transactions that involve state-owned enterprises and the sale of state assets (Hao Jiang and Antonia von Appen), assessed the sheer positive effect of codification in Qing dynasty (Taisu Zhang) and demonstrated what we can learn from the Confucian model of rule of law (James Gordley). They also critically evaluated some fundamental doctrines in civil law such as change of circumstances (Han Shiyuan and Liu Qiao), security interests (Lei Chen), and causation (Marta Infantino and Weiwei Wang). Mauro Bussani offered a pluralistic view of tort law and explained why we should take the aim or societal function of torts into consideration when we assess the black-letter law. Ding Chunyan demonstrated how the doctrinal system of tort law has been transformed under the new Code. Wang Liming, the main architect of the Chinese Civil Code, along with Xiong Bingwan, presented a persuasive account of why personality rights law deserves an independent status in modern civil law. Enrico Toti made a surprising connection between the procedural rules in Roman law and the green principle in the Chinese Civil Code.

The Making of the Chinese Civil Code by Hao Jiang And Pietro Sirena

About The Authors

Pietro Sirena

Pietro Sirena is Professor of Civil Law, European Private Law, and Comparative Private Law at Bocconi University, where, since 2018, he serves as Dean of the Law School. He also se...

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Hao Jiang (Primary Author)

Hao Jiang is Assistant Professor of Comparative Private Law at Bocconi University. He has written about Chinese, European and American private law from a comparative perspective. H...

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