Italy: The PRC Civil Code For Common Lawyers – A General Introduction

What is a civil code

A civil code is a large piece of organized legislation that seeks to provide an overall legal framework on private law matters such as family, successions, property, contracts and tort. For modern common lawyers, the main challenge of a civil code is its brevity. Rules are brief, meant to applied to a wide generality of cases, and use concepts that are often unfamiliar. The history and characteristics of the civil law imply that textbooks and legal literature have a far greater importance than in the common law system as academic writing is regarded as part of the legislative process and of the interpretation of statues. A number of definitions or explanations of legal concepts may be found in academic textbooks rather than in legislation or in decided cases. This is particularly true for laws of long traditions and broad application such as a civil code. For this reason, some of the main Chinese legal authors have been listed in this article. I apologise in advance for any that I may inadvertently left out. This does not mean that decided cases have no role to play. Decided cases in civil law jurisdictions tend to determine the detailed meaning of single rules, whilst academia sets out the basic concepts. From a learning perspective, therefore, you should read first academia, then legislation and finally decided cases. If instead you know the rule, and you wish to understand how the rule is interpreted, the order is inverted: you should first look at published, decided cases to see if there is a consolidated judicial interpretation of the rule. If cases do not help, you should look at legislation. If legislation is not sufficiently clear, you will have one more resource: you can look at parliamentary papers to clarify the legislator's intentions and objectives. In addition, each of the modern civil codes has been drafted on the basis of pre-existing models either in the same country or in a different country. This implies that civil codes are related to each other, they have ancestors, they have siblings and relatives. These can all be utilized to understand the code we have at hand. Historical investigations, comparison with how similar rules work in other jurisdictions, are permissible means of interpretation in the civil law. Finally, civil codes have a systematic structure and must be read as a whole. Obviously, in most cases, if you wish to understand whether a contract is valid you will not need to read the rules on family law (though you may in certain situations), but it you may have to read the rules on civil legal acts and expressions of will. Reading only the sections concerning contract may not suffice as you may miss significant basic concepts or general principles. The code is a massive piece of legislation, with Therefore, an understanding of the systematics of the code, i.e. of how the rules are arranged. The use of the arrangement of rules as a means to interpret them is called systematic interpretation.

The civil law and the history of codification

The civil law ultimately derives from the historical customs in the city of Rome. In historical times, these customs  were regarded as law, and formed the basis of judicial decisions, legislation, as well as well the education of the ancient Roman ruling class, the patricians. In difficult cases, a legal expert would be consulted, who would issue a response containing his opinion on what the law was on a particular issue. These expert responses were also regarded as being part of the law. As legislation became more and more complex, it became necessary to have a centralised archive system, where authentic copies of each piece of legislation would be stored. This official record office (the tabularium), was placed on the slope of the Capitol Hill, and can still be visited today. In addition, it started becoming necessary to write textbooks that would assist law teachers in their work. The most ancient textbook we have is the Institutions of Gaius, which dates about 180 AD. These textbooks would often be based on the edict of the praetor urbanus, a kind of chief justice, who on taking office would issue a general edict on the law he would enforce. During the early empire, the edict would become unchangeable and be known as the edictum perpetuum. With the growth of Roman territory, the increase in the number of its provinces, legislation increased as well until, it started becoming unmanageable. One way to try and deal with this situation, was to publish bound books (in Latin codices, hence the word "code"), containing collections as the main legislation arranged in a systematic way. The first such codes, the Gregorianus and the Hermogenianus of the third century AD, were private collections. They were followed by a government sanctioned collection, ordered by the Emperor Theodosius, the Codex Theodosianus. These codes were little more than encyclopaedias or compilations of the current law.

The Justinian Code and medieval law

At the time of Emperor Justinian, in the sixth century AD, the legislation in force had reach the legislation in force had reached several million lines, which, at a time when there was no printing press, was beyond what any lawyer, judge or professor wanted to deal with. The Emperor, as part of his overall reforms of the empire, decided to re-enact substantially the entire civil law, between 529 and 534 AD, in a single manageable work called the Corpus Iuris Civilis (the Body of the Civil Law), which replaced all previous legislation and summarised it in five large volumes. This was probably the first work of actual 'codification', meaning a general rearrangement a whole branch of the law, in an organic and systematic way. During the dark ages, Justinian's Corpus continued to be used in the Eastern Roman Empire, but was gradually neglected, and then forgotten or lost, in Western Europe. The Romano-Barbarian kingdoms made various attempts to emulate Justinian, by enacting their own framework laws, which incorporated elements of both Roman law and Germanic customs. In the 11th Century, Justinian's Corpus was found by, or caught the attention of, Irnerius, a law professor at the University of Bologna, who used it as a basis for his civil law courses. The Justinian corpus acquired, therefore, new currency through the universities. Even though not formally enacted, in the high middle ages, it was the basis of most reputed textbooks, and was generally regarded as good law by the majority of those with a university legal training. In this way, the scholarly tradition acquired its particular status in civil law countries, where often legislation is drafted by professors to date. In 1495, the establishment of the new supreme court of the Holy Roman Empire, the Reichskammergericht, or Imperial Chamber Court, gave a further boost to the expansion of the general civil law over fragmented medieval customs and feudal legislation, as most of its judges were trained in the civil law and would use it to base their judgments, which would prevail on local legislation whenever the proceedings were brought to the Imperial Chamber Court.

The XIX Century European codes

After the dissolution of the Holy Roman Empire, and the abolition of the Imperial Chamber Court in 1806, the civil law (also called "Roman law", even though its contents had significantly evolved from the time of Justinian) remained in force throughout Germany. The main driving force of its development became, once again, the academic world. France published its code in 1804, Austria in 1811. Germany, however remain anchored to traditional, academic based civil law for almost a century until 1900, with the publication of the German civil code, the Bu?rgerliches Gesetzbuch (BGB). The XIX Century Roman law of Germany, however, had little in common with the ancient, or even the medieval, Roman law. German legal scholars gradually refined it by extracting general rules and concepts, and reorganising it so with the aim of making it into a simple, coherent system to the extent possible. Their thought was also inspired by liberal thought prevailing at the time, and emphasised the sanctity of private property, and the individual freedom in disposing of one's property, entering into contracts etc. In terms of systematics, they drew a number of broad concepts of general application from the existing laws, such as the idea of legal person, that of legal act, or of the power of agency as a separate concept, and placed most of these concepts in the introduction, which now forms the general part of the BGB. The BGB and all codes that derive from it, including the 2020 PRC civil code, are the fruit of academic work, which necessarily includes a focus on teaching law, on simplifying, on arranging matters according to a system that is easy to remember, and keeping the number of actual rules to a minimum and broaden their application. This obviously requires a measure of training and understanding of the system and of the connection between rules that may be placed very far apart in the code. From a common-law perspective, therefore, using a civil law code presents two main challenges: finding a rule, and understanding what it implies. Rules are often not where a civil lawyer would expect them to be. By the same token, reducing the number of rules entails that the meaning and implications of each single rule may be far-reaching. The rule that legal capacity ends at death, for instance, implies that there is no real concept of deceased estate, or that probate as such may not be really necessary.

Historical introduction to the civil code of the PRC

The first reception - The content and characteristics of the 1900 German civil code show the amount of thought that had gone into it. Unlike its French and Austrian counterparts, the BGB contains a general part with overall rules of broad application, as well as very several new legal concepts elaborated by German academia in the XIX Century, such as the expression of will (Willenserklärung), the legal civil legal acts (Rechtsgeschäft), etc., that have been adopted in the current PRC civil code. Japan, who was undergoing sweeping reforms, decided to adopt its own civil code, taking as a model the 1896 first draft of the BGB, promulgating it in 1899, one year before of the formal enactment of the German code. In China, in 1902, the young Chinese emperor Guangxu appointed a codifying commission, which was revoked and then reappointed in 1907. The commission worked on the basis of the Japanese code and published the first Chinese draft of a civil code in 1911, the last year of the Qing dynasty. The draft was never promulgated. After the establishment of the republic, a new codifying commission was established, which published a further draft in 1925.[ Both draft have been republished in 2002 as edited by Yang Lixin, one of the main drafters of the current code (?? ???:?????????????,???????2002).] The commission was reappointed in 1928 after the establishment of the Legislative Yuan. On 20 April 1929, the Part I of the civil code was adopted by the Legislative Yuan and entered into force on 10 October 2029, the further Parts were adopted in short succession in 1930. The 1929-30 code is currently in force in Taiwan. There is a significant amount of legal literature on the 1930 code available both on the mainland of China and in Taiwan. Some of the significant authors on this code that are still printed and read on the mainland of China are Shi Shangkuan, Hu Changqing and Wang Zejian.

Codification in the PRC

In Mainland China, the code was abolished in 1949 with the establishment of the PRC. A new codifying commission was appointed in 1954 and a new civil code draft was submitted in 1957. The draft was meant to integrate Soviet law into the previous Chinese code framework. The works on the civil code were interrupted by the anti-rightist campaign of 1957 and resumed in 1964. A very brief draft of only 263 articles was submitted in 1964 but was never promulgated. After the cultural revolution, in November 1979, the Legislative Committee of the National People's Congress appointed a codification commission, which submitted a first draft in 1980 and a second one in 1981. From the point of view of legislation technique, however, a consensus had been reached that it was simpler to enact framework laws on single topics rather than a systematic code. So, a marriage law was enacted in 1980, a law on economic contracts in 1981, and a Succession Law in 1985. As a consequence of this choice, the code was reduced to the general part only, which was enacted on 12 April 1986 and came into force on 1 January 1987 with the name of Minfa Tongze, General Principles of the Civil Law. The General Principles of the Civil Law remained in force until 2017, with a minor but significant modification in 2009, being the removal of the reference to state economic planning as a criterion to judge the validity of contracts (article 58), and civil exchanges in general (article 7). As compared to the previous situation, the General Principles set out clear provisions in favour of legality and certainty of the private law. Article 5 stated that: "The legitimate rights and interests of citizens and legal persons are protected by law and may not be violated by any organisation or individual", which for a socialist government is significant. On the other hand, Article 6 provided that: "Civil activities must respect the law. Where the law has no provisions with regard to civil activities, they shall respect State policies", and Article 7 that: "Civil activities shall respect social moral principles and shall not harm the common interests of society, damage State economic plans or disrupt social economic order". The Minfa Tongze was probably meant to be a compromise between the requirements of a planned economy and the protection of individual interests, which was part of China's legal tradition and was, at the same time, necessary for economic development. From the late eighties, legal literature in the PRC enjoys a moment of great development. The very lack of general legislation on broad aspects such as property or contracts means that textbook authors need to delve into the Chinese, Japanese, German and even Roman legal tradition. Authors like Xu Guodong, Tong Rou, Wang Jiafu, Wang Zuotang, Tang Dehua, Qian Mingxing ecc., who are mostly academics or senior members of the judiciary, do not simply comment or explain legislation, but try to create an organic system that includes the scant legislation within a coherent framework of legal concepts. Legislative activity on civil law matters did not stand still for long. The Adoption Law was enacted in 1991, the Security Law was in 1995, the Contract Law in 1999. In 2001, the Standing Committee of the Ninth National People's Congress organized the drafting of the "Civil Law of the People's Republic of China (Draft)", which was reviewed in 2002. After discussion, it was decided to continue to adopt separate laws. The Real Rights Law, regarding property matters, was enacted in 2007, and the Tort Law in 2009. These pieces of legislation had an impact on legal literature as well, which started focusing on promulgated law more closely, and moved the general theory to the introduction or to commentaries. Some authors we may list on this kind of literature are Liang Huixing, Cui Zhenyuan and Wang Liming. On 24 October 2014, the "Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning the Comprehensive Promotion of the Rule of Law" gave the kickstart to the actual work of codification in China. Further to the decision, no fewer than five drafts of the General Rules of the Civil Law were published in 2015, followed by fife further drafts in 2016. The General Rules of the Civil Law of the People's Republic of China, Minfa Zongze, were finally adopted at the 5th Session of the 12th National People's Congress of the People's Republic of China on 15 March 2017, were promulgated on the same day, and became effective on 1 October 2017. It is noticeable, however, that even if only the General Rules were promulgated, the drafting work concerned the code as a whole. The new General Rules have 206 articles, and are divided into 11 chapters, which roughly follow the sequence of the general part of the German code and of the 1930 Chinese civil code, minus the sections on things (Sachen, ?) and one on the exercise of rights (Ausu?bung der Rechte, ?????), though it contains a chapter on civil rights, Chapter 5, which includes some of the provisions on things and on the exercise of rights. The general part of the 2020 Civil Code largely reproduces the 2017 General Rules, and will be analysed in greater details in a separate article. In August 2018, the fifth session of the Standing Committee of the 13th National People's Congress conducted the first review of the drafts of the Civil Code as a whole. Since then, the review proceeded on separated books. In December 2019, the full text of the civil code draft was published for comments. The final version was adopted by the third session of the 13th National People's Congress on 28 May 2020, was promulgated on the same day by presidential decree no. 45, and will become effective on 1 January 2021. The current code has 1260 articles, and is divided in seven parts, respectively: general principles, real rights, contracts, right of the person, marriage and family, succession and tort. Though largely based on the BGB and the 1930 civil code, it has nevertheless several aspects of novelty.

The arrangement of topics in the PRC Civil Code

As mentioned, the arrangement of topics is probably the main point to grasp in order to be able to find rules in a large piece of legislation such as the civil code. The issue of arranging rules according to a definite order is a very old one in civil law tradition. Roman textbooks would be traditionally divided into three parts: persons, things and actions, where the first part concerned personal status, family and successions, the second part property rights, including the way of disposing of the same, therefore contracts, and the third part was concerned with legal proceedings to enforce one's rights. This tripartite division, which when judicial procedure became a separate branch of the law was transformed into: persons, things and obligations, is roughly followed by the 1804 French code and the codes that follow the same model, like the Austrian or Italian codes. The German code had instead adopted a different subdivision, which was largely the fruit of the XIX Century's legal academia. The BGB was structured in five books, respectively: general principles, obligations (contract and tort), real rights (property), family, successions. China's 1930 civil code used an identical basic structure. The 2020 code, though using the same basic framework as the 1930 code, it introduces significant changes in the distribution of the topics. It is divided into seven parts: general principles, real rights, contracts, personality rights, marriage and family, successions and tort. We venture to believe that the split of obligations into contract and tort may be an influence of common law. A table of contents with some comments is below. We have used the Wolterk Kluwer English translation and have added in brackets some reference to parallel concepts in common law.

Part I - General Principles

The first chapter being basic provisions, sets out very broad principles to interpret the whole of the civil law. One example is the principle of good faith, which includes honesty and the fulfillment of one's undertaking, which has a very significant impact on how contracts are interpreted and, therefore, on how they are written at civil law. Chapters 2 to 4 relate to the various kinds of persons, being natural persons, legal persons and unincorporated associations (partnerships and societies). Chapter 5 is titled "Civil Rights", and contains simplified versions of the 1930 code chapters on things and exercise of rights. Articles 109 to 114 contain general statements on persona rights: freedom, human dignity, life, honour, privacy, name, but also property and personal data. Articles 115 to 117 relate to things, they subdivide movables (chattels) and immovable property (real estate). Chapter 6 concerns civil legal acts, being expressions of will that create, modify or extinguish rights and obligations. Civil legal acts are a broad category encompassing contracts, wills, trusts, unilateral undertakings, but also family-related acts such as wedding, adoptions, etc. One very important article in Chapter 6 is article 142, which provides that: "The meaning of a manifestation of intent that is made to a counterparty shall be interpreted according to the literal meaning of words used and in combination with the relevant articles, nature and purpose of the act, usual practices, and the principle of good faith." This article gives the basic rule for interpreting contracts as well as offers and acceptances. As for unilateral declarations (e.g. wills), the same article goes on to say that: "In the interpretation of a manifestation of intent that is made not to a specific party, the real intention of the person shall be sought rather than the literal meaning of words used and also by considering the relevant articles, nature and purpose of the act, usual practices, and the principle of good faith." Chapter 7 relates to agency, being principal-attorney relation, which can be conferred by a power of attorney, by a contract of mandate or by the law as it is the case in a guardian-ward relation. Chapter 8 includes general principles on civil liability, Chapter 9 concerns time bars and Chapter 10 the calculations of time periods.

Part II - Real Rights (property matters)

Real rights, also know in English as rights in rem, are substantially rights over things. We have seen that under Chinese law we can reasonably infer that things are only corporeal objects, even if this definition is not clearly expressed in the law. Real rights include ownership rights, mortgages pledges, easements, etc. but also novel kinds of rights which are part of the PRC socialist heritage. Interestingly, under civil law, leases are not regarded as real rights but as contractual rights only. This part is divided into five subparts and 20 chapters. It covers articles from 205 to 462. Real rights have the characteristics of being erga omnes (rights against the world at large), of being typical, i.e. that they are a limited number of rights with a content fixed by law, and of having sequel, which means that they follow the thing even if the thing changes possessors, or in the case of partial rights, such as mortgages, if the thing changes owner. Real rights are classified into: Ownership (???), is the object of Subpart II of Part 2 of the civil code and is defined in Article 240 as the right to possess, use, exploit and dispose of the thing in accordance with the law. Rights on a thing belonging to another (??? or ???), which are partial rights over a thing whose ownership is held by someone else. These rights are further divided into:

• Usufructuary rights (????), which form the object of Subpart III, and which are rights to use and draw economic benefits from a thing, but fall short of being full ownership. According to the civil code, these rights include: usufruct, right of habitation, easements, but also some specifically "socialist" rights such as right to land contract management, construction land use right and rural residence right.
• Security rights (????)in Subpart IV, which are mortgage, pledge and lien.

Part II is closed by Subpart V on possession, which is not a right, but receives a measure of protection as a quasi right. One glaring omission from the Civil Code, and indeed from the PRC legal system, is adverse possession. The 1930 Code included the possibility to acquire ownership of real property by adverse possession in articles 768-772.

Part III - Contracts

This part in the PRC civil code, replaces in a way the part on obligations of the BGB and of the 1930 code. The obligations part would include matters such a how an obligation arises, how it can be extinguished, rules relating to the performance of obligations etc. The obligation part would also contain a section on contracts, one on tort and one on quasi-contracts. The drafters of the PRC civil code opted for a different arrangement, possibly to increase continuity with the 1999 Contract Law of the PRC. One difference, however, is that the civil code seems to be more aware of the traditional obligation framework and ties to plug the loopholes that the 1999 Contract Law had left open. Part III is divided into three subparts: Subpart I on contracts in general, Subpart II on specific kinds of contracts and Subpart III on quasi-contracts.

Subpart I - General Rules on Contracts: Chapter 1 contains the definition of contract as well as some very broad rules on application of the law. Chapter 2 concerns the conclusion of contracts, rule of offer and acceptance etc. Chapter 3 on the effectiveness of contracts, in on the validity and nullity of contracts. Chapter 4 concerns performance of contracts, though its content in fact relates to performance of obligations. Chapter 5 title "Preservation of Contracts", is again obligation-related and concerns the right of subrogation and revocation of conveyances damaging creditors (Paulian action). Chapter 6 is on amendment and assignment of contracts, Chapter 7 on termination and discharge, and Chapter 8 is on breach liability. The definition of contracts appears under article 464: "A contract is an agreement between civil subjects which establishes, modifies or terminates a civil legal relationship." The articles goes on to say that "Agreements concerning identity relationships such as marriage, adoption and guardianship shall be governed by the provisions of the law governing such identity relationships; in the absence of such provisions, the provisions of this Part may be applied mutatis mutandis in light of the nature of such agreements." The definition of contract is, therefore, extremely broad, as it includes not only bargains but substantially any pact, of whatsoever content, that has legal effects, whether or not a consideration exists. This wide definition means, in practice, that it is very easy to enter into contracts at civil law.

Subpart II - Typical Contracts: This part is concerned with the rules applying to specific kinds of contracts, such as sale and purchase, loan, lease etc., that have a codified set of legal provisions. These contracts are called typical contracts. Obviously not all contracts will fall into the typical contract categories. These "atypical" contracts will normally be subject only to the general contract law, or to specific provisions contained in other legislation (e.g. franchising contracts, joint venture contracts etc.). An important part of the work a civil lawyer when considering a contract is to judge whether the contract will or not fall into one of the typical contract categories and whether, therefore, the relevant set of rules will apply. The typical contracts that are regulated under the new civil code are sale and purchase, contracts for the supply of power, water gas or heat, gifts (as no consideration is required, gifts are contract at civil law), loans, guarantees, leases, financial leases, factoring, contracts for works, construction contracts, carriage contracts, technologyc contracts, safekeeping contracts, warehousing contracts, mandate contracts, property management contracts, brokerage contracts, and intermediation contracts. Leases at civil law are not property interests, but are contracts, conceptually similar to licences at common law. Leases include renting of chattels or of real property. Leases of real property may also be subject to specific separate legislation. As in the previous Contract Law of the PRC, specific attention is given to technology contracts, which include contracts for the development of technology, the licence or assignment of technology or for technical consulting or technical services. Another typical contract that is worthy of attention, specifically for lawyers, is the contract of mandate or entrustment (weituo hetong), which is the pact by which one party entrust another party the handling of certain affairs. A contract of mandate may include or not a power of attorney.

Subpart III - Quasi-contracts: Quasi-contracts are a Roman law concept that includes certain facts that give raise to obligations, even though they are not contracts. Under the new civil code, these include:

• Negotiorum gestio, which is the situation in which somebody manages the affairs of another without consent but in good faith and for the benefit of the other; and
• Unjust enrichment, which covers a variety of situation in which one party has been enriched to the disadvantage of another unjustly and without legal basis.
• Unilateral promise and acknowledgment of debt, which are the other traditional quasi-contracts, are not dealt with in this subpart but in the general part.

Part IV - Personality Rights

Personality rights are rights erga omnes, but not of a property content. Article 990 of the civil code provides that "Personality rights are the right to life, right to body, right to health, right to personal name, right to name, right to portrait, right to reputation, right to honour, right to privacy, and other rights enjoyed by civil subjects" and that "a natural person shall enjoy other personality rights and interests generated from personal freedom and personal dignity." Personality rights may not be waived, assigned or inherited. Article 999 provides a reasonableness test for media: "Persons who carry out news reporting, public opinion supervision, etc. for public interest may make reasonable use of the personal name, name, portrait, personal information, etc. of a civil subject; persons who make unreasonable use of the aforesaid items to infringe upon the personality rights of a civil subject shall bear civil liability pursuant to the law." Privacy and protection of personal information have been inserted in the code under Chapter 6 of Part IV. These provisions will have to be read in conjunction with specific legislation on privacy and cybersecurity. Article 1031, second paragraph, contains a powerful definition of privacy: "Privacy is a natural person's private life peace, as well as private space, private activities and private information that one does not want to be known by others."

Part V - Marriage and Family

This part contains provisions on marriage, family relations, divorce and adoption. Article 1043 provides that "Families shall cultivate good family tradition, carry forward family virtues, and attach importance to the construction of family civilization. Husband and wife shall be loyal to each other, respect and care for each other; family members shall respect the old and care for the young, help each other, and maintain the marriage and family relationship characterized by equality, harmony and civility." In marriage, PRC law distinguishes between the joint property of the couple and the personal property of each spouse. By and large, unless otherwise agreed in writing, anything obtained after marriage, with the exception of inheritance by will, gifted property and compensation, belongs to the couple rather than to the individual spouse. Debts instead are jointly borne only if the creditor can prove that such debt is used for the couple's life or common production or operation activities, or is incurred based on expression of the couple's common will.

Part VI - Succession

This part contains provisions on intestate and testate succession, by and large taken from the European continental law model. The heirs are universal successors and inherit the debts as well as the assets of the deceased. The heirs have, however, the right to waive the inheritance if they so wish.

Part VII - Liability for Tort

In relation to tort liability, the PRC civil codes seems to attempt to strike a balance between the two main contemporary civil law traditions: those of France and Germany. In France, article 1240 of the civil code provides a broad principle of "extracontractual liability" in general by stating: "Any human fact whatsoever that causes damage to others obliges the person by whose fault it has occurred to repair it."[ Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer.] By contrast, the BGB talks about "unlawful acts" and in section 823 provides that: "A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this"[ Wer vorsätzlich oder fahrlässig das Leben, den Körper, die Gesundheit, die Freiheit, das Eigentum oder ein sonstiges Recht eines anderen widerrechtlich verletzt, ist dem anderen zum Ersatz des daraus entstehenden Schadens verpflichtet.] and immediately continues with detailed provisions on specific acts that give raise to different kinds of tortious liability. In the PRC, article 1165 of the civil code seems to adopt an intermediate formulation, stating that: "Whoever is at fault in infringing upon another party's civil rights and interests and causing damage thereto shall bear tortious liability." Also in the arrangement of topics, the PRC civil code adopts a mixed approach, by inserting a first chapter on general provision, a second on damages and even a third on the subjects of liability (liable persons) before delving into the details of specific torts. The specific torts listed in the civil code are: product liability (Chapter 4), motor vehicle traffic accidents (Chapter 5), medical malpractice (Chapter 6), environmental pollution and ecological damage (Chapter 7), ultrahazardous activities (Chapter 8), harm caused by domestic animals (Chapter 9) and harm caused by buildings or objects (Chapter 10). Different torts may have different negligence or fault requirements.

Conclusion

A civil code is normally meant to be a very long lasting piece of legislation. The Napoleon code in France and the BGB in Germany are still in force, and form the backbone of the respective legal systems. The PRC code is also designed and written with this idea in mind. It will take time, probably decades, for its application and interpretation to mature, to take shape and life by the accretion of layer after layer of judicial, legislative and scholarly interpretations, and by the gradual absorption of its framework and principles into the next generation or Chinese lawyers.