Insights into China's new civil code 

A huge collection of civil laws covering a vast spectrum of social issues has been approved by the country's parliament and will come into force in January; it will affect all business and people in China

Insights into China's new civil code
The Chinese government has signalled that it might end its decades-old birth limits that have led to a rapid ageing of its population. The civil code discussed by the National People's Congress removed any mention of family planning in marriage and adoption laws, which suggests the government is considering lifting restrictions on childbirth. Existing law stipulates that a 'husband and wife have obligation to implement family planning.' Photo: Liu Jianhua / Imaginechina via AFP   

(ATF) The Chinese Government has finally completed years of work drafting a Civil Code, something akin to a Bill of Rights that will affect all business and individuals in China. It is seven volumes long and comes into effect next year – so here is the ATF guide to what you need to know.

The current official explanation is that the civil code is an "Encyclopedia of Social Life" and covers everything from sexual harassment to the collection of personal information by mobile phone apps. Of course, the Communist Party collects citizens data, but third party apps are now under close scrutiny.

At the top of the list of changes brought about by the Civil Code is the protection of civil rights so that if a person or business incurs civil liability, they should be the beneficiary of appropriate compensation. In addition, if the recipient suffers damage due to a voluntary emergency rescue, the rescuer shall not endure civil liability. This is why people have often been left alone after accidents, as previously those who intervened had sometimes become liable. But officials hope this will change from January 2021.

Some analysts have said the code is designed to bolster the low level confidence in China's legal system and maybe boost foreign investment.

But experts have said the civil code won't protect entrepreneurs in criminal cases – they can still have assets seized by the state. This is one reason that some say the code can be more symbol than substance, although there is also hope that it will reduce bureaucratic meddling and abuse.

Divorce 'cooling off' period 

Chinese couples seeking a divorce must first complete a month-long "cooling-off" period according to the draft of the code passed on Thursday. However, this provision sparked outrage over state interference in private relationships, according to AFP. 

The current draft requires couples filing for separation to wait for a month before their request can be processed – in a bid to reduce divorce rates. But it sparked widespread opposition when lawmakers first sought feedback last year. 

After it was passed, the law became one of the top trending topics on Weibo, China's version of Twitter, with over 25 million views of posts using the hashtag "oppose the divorce cool-off period".

But the cooling-off period will not apply if one spouse is seeking divorce following domestic violence. China's divorce rate has increased steadily since 2003, when marriage laws were liberalised and as more women become financially independent. But that led to "reckless divorces" becoming an increasingly common phenomenon not conducive to family stability, an official told China Women's Daily recently.

Last year some 4.15 million Chinese couples untied the knot – up from 1.3 million in 2003, when couples were first allowed to divorce by mutual consent without going to court. Before then, divorce had to be obtained by one spouse suing another in court.

Sexual harassment

Meanwhile, workplace sexual harassment has also been a huge issue. The Civil Code will make workplaces or schools responsible for handling this problem. The code stipulates standards for identifying sexual harassment, as well as the obligations of institutions, enterprises, schools and other units to prevent sexual harassment.

The draft makes it clear that if anyone violates the will of others and sexually harasses another person through speech, behaviour, or other means, the victim has the right to request that the perpetrator bears civil liability according to the law.

Insurance liability

Another issue is whether a citizen who participates in dangerous activities can claim compensation if they get injured. Insurance firms will note that the code introduces a "self-reliance risk" rule. If people voluntarily take part in cultural or sports activities with a certain risk and they suffer injury because of the behaviour of other participants, the victim cannot request other participants to bear tort liability, except if other participants are grossly negligent.

Article 1254 on infringement liability makes it clear that throwing objects from buildings is prohibited. If an item thrown or dropped from a building causes damage to another person, the thrower (or person who dropped the item) shall bear tort liability according to law. And if it is difficult to determine who bears responsibility after an investigation, property management companies and building managers must take measures needed to protect others’ safety. If this is not done, they shall bear tort liability for failing to perform their safety obligations under the law.

Relevant authorities are obliged to promptly investigate such matters to clarify which person is responsible.

Right to privacy

Meanwhile, use of "AI" – artificial intelligence – is growing. And now it can infringe on personal rights to privacy, so citizens should have the right to protect their personal image and identity. The civil code says all people enjoy a right to privacy and stipulates that no organisation or individual may infringe on the rights of others by means of spying, intrusion, disclosure, vilification, defacement, or forgery using information technology, without consent.

In addition, the code makes it clear that protection of a person’s voice is also included. The law also covers apps on mobile phones that discreetly collect personal information, uninvited phone calls by salespeople, and mandatory pop-up advertisements that cannot be turned off. Privacy is a right and their private space, personal activities, and private information that an individual does not want others to know, must not be copied.

The processing of people’s personal information must follow principles of lawfulness, legitimacy and necessity – it must not be excessively processed, and should meet the following conditions: obtaining the consent of a person or his or her guardian, except as otherwise stipulated by laws and administrative regulations; follow rules for publicly processing information; companies should express the purpose, method and scope of processing information; and companies should not violate the provisions of laws and administrative regulations and the agreement between the two parties.

Sales contracts

Shopping online, or when buying financial or insurance products, some merchants provide contract versions with very small type fonts, so that consumers aren’t fully aware of what they agree to. In the event of a dispute afterwards, the merchant can avoid his or her responsibility on the grounds that the consumer agreed to it.

The civil code stipulates clearly that if a contract is made using standard terms. But if the party providing the terms fails to explain its obligations, so that the other party fails to pay attention or understand the terms which it has a significant interest in, the other party may claim that the terms cannot become part of the contract.

Witnesses required for printed wills

The question of whether a printed will (as opposed to handwritten one) has legal effect often causes disputes. In response to this, the civil code states the actual needs and defines the effectiveness of printing a will.

Drafts drawn up by those married and with a family make it clear that there should be more than two witnesses present to confirm a will. The testator and the witness should sign each page of the will, and indicate the year, month and day.

Property rights

Property rights make it clear that income generated by the construction of a unit, property service enterprise, or other managers from the common part of the owners, after deducting reasonable costs, belongs to the owners.

High-profit lending banned

In recent years, "pay day loans" and "routine loans" frequently occur, and the issue of loan sharks has attracted widespread attention. The civil code states clearly that high-profit lending is prohibited, and the interest rate for borrowing must not violate relevant state regulations.

If a loan contract does not stipulate the payment of interest, it shall be deemed as having no interest. If the loan contract is unclear about the payment of interest and the parties cannot reach a supplementary agreement, the interest shall be determined according to the local or party’s transaction methods, trading habits, market interest rates and other factors. If borrowing occurs between individuals, it shall be deemed that no interest is charged.

Car accident guideline

Can chasing a vehicle that caused an accident ends up causing a further traffic accident, be regarded as "exempt"?

The infringement liability section of the code says if people’s legal rights and interests are infringed, and the situation is urgent and cannot be protected by state organs in time, and if the measures are not taken immediately, people’s legitimate rights and interests can be damaged beyond repair. Reasonable measures include withholding the property of the infringer – however, relevant state authorities should be immediately requested to deal with such matters. If measures taken by the victim improperly cause damage to others, they shall bear tort liability.

Genetic defects and marriage

In marriage, if one party conceals a very serious family genetic defect before they wed, can the marriage be annulled? The code’s Marriage and Family Editor provides clear provisions on this point: if one party suffers from a major illness, they should truthfully notify the other party before they register a marriage. If they don’t do this, the other party can request a people ’s court to revoke the marriage.

If a marriage is cancelled, it shall be submitted within one year from the date of knowing the reason for the cancellation.

Divorce and compensation

Is it also possible to get compensation when the divorced party suffers from a marriage that goes badly?

The code on marriage and families is clear. If one of the following circumstances leads to divorce, the party without fault has the right to claim damages: (1) bigamy; (2) co-habitation with others; (3) domestic violence; (4) abuse and abandonment of family members; (5) Other major faults.

Debts of married couples

Another issue the code seeks to answer is: When is a borrowing debt incurred by a married person a joint debt of both husband and wife?

The Marriage and Family Code stipulates that if both a husband and wife jointly sign a debt contract or the husband and the wife subsequently recognise the debt/s owed, and the debt/s are borne by the husband and wife in the name of the individual for the daily life of the family during the marriage relationship, it is a joint debt.

A spouse’s debt that exceeds the family’s daily needs in the name of the individual during the marital relationship is not a joint debt of the spouse, the code says. But if the creditor can prove that the debt is used for the spouse’s common life, or based on the common intention of the spouse, the same applies.

So, it is hoped that many deep conflicts in Chinese society will be better managed by these legal measures, which aim to prevent conflict and bring about a more harmonious society.

with reporting by AFP