2017 NPC Session: Schoolchildren, Heroes, Good Samaritans & Draft Civil Law (UPDATED)

The annual session of the National People’s Congress (NPC) is currently underway. Apart from the routine budget, development plan, and four central State organs’ work reports, this year a major piece of legislation is also being reviewed by the NPC: General Provisions of Civil Law (GPCL). As the name suggests, it is a set of guiding principles for a future civil code—codified laws that modulate personal and property relationships between civil entities. After the delegates spent last Friday deliberating the bill, several important changes were made to the draft. This post reviews these changes as reported by the press, starting with some background information.

Background

The GPCL marks the start of China’s fifth attempt to compile a civil code, after having failed in the 1950s, 1960s, 1980s, and early 2000s. The first two attempts were derailed by political turmoils at that time. While the third attempt started after China implemented the “reform and opening-up” policy, legislators decided that the social conditions weren’t ripe for a unified civil code, as China’s economy and society were still undergoing rapid transformation. The fourth attempt halted for similar reasons.

Instead, the NPC started enacting separate civil laws in the 1980s—in the hope of codifying them at a future date. For instance, the NPC passed the Inheritance Law in 1985, the Contract Law in 1999, the Property Law in 2007 (after having deliberated it for five years), and the Tort Liability Law in 2009. Because these separate laws were enacted years—and even decades—apart, they in numerous places conflict with each other and many also need to be updated.

Against this backdrop, the Communist Party in 2014 ordered the current attempt at a civil code, signaling that the time is now ripe. Drafting of the GPCL—which is based on the General Principles of the Civil Law passed in 1986—started in 2015. Several previous drafts were reviewed by the NPC Standing Committee (NPCSC) in 2016 before the law was submitted to the ongoing NPC session.

(Very) Brief Summary of GPCL’s Contents

The draft GPCL as originally submitted last week consists of 11 chapters with a total of 210 articles. In other words, it’s voluminous. We therefore won’t elaborate on its contents. In essence, the GPCL prescribes rules on (among other subjects):

  • Basic principles of civil law (Chapter I);
  • Civil entities such as natural persons and legal persons (Chapters II–IV);
  • Civil rights [民事权利] such as property rights (Chapter V);
  • Conducts affecting civil legal relations (Chapter VI);
  • Civil liabilities (Chapter VIII);
  • Limitation periods for litigation (Chapter IX).

For more information, please refer to the draft’s official explanation (in Chinese) and these reports by Xinhua, the Wall Street Journal, and Reuters which touched upon some of the GPCL’s key provisions—three of which will be discussed below.

Latest Changes to Draft GPCL

Are you old enough to “get soy sauce”?

The very first draft of the GPCL, submitted to the NPCSC in June 2016, lowered the age of “limited capacity for civil conduct” to six from ten under existing law. As a result, minors over six (and under 18) may independently carry out certain activities that are “appropriate to their age or intellect”—such as buying stationery with pocket money—without their guardians’ consent.

This provision has led to heated debate on the proper age limit—or the “getting-soy-sauce” age as dubbed by some media, referring to an activity that has historically been deemed appropriate for children. Supporters argue that minors’ cognitive abilities and other capabilities have greatly improved since the 1980s, when the current 10-years-old limit was put in place. Lowering the age limit to six would better “respect the minors’ autonomy” and protect their rights and interests.

Opponents instead contend that six-year-olds, who would normally be first graders, lack meaningful “social experience.” Some also point to the uneven educational standards across China, reasoning that children from poorer regions would be mentally less mature than their peers from more developed areas. Therefore, they recommend lowering the age limit only to eight, or keeping it at ten.

Interestingly, the NPC Law Committee, which is responsible for revising legislative drafts based on legislators’ opinions, has three times sided with supporters of the provision—until yesterday. In a report cited by Caixin, it decided to change the lowest age of limited capacity for civil conduct to eight, from six.

Think twice before joking about national heroes

According to the same Caixin report, the NPC Law Committee also added a new article in the draft GPCL to deter—and to punish—defamation of national heroes and martyrs, as suggested by some delegates. The article reads:

Those who infringe on heroes’ and martyr’s names, portraits, reputation, or honor, harming social public interest, shall bear civil liabilities.

侵害英雄烈士的姓名、肖像、名誉、荣誉,损害社会公共利益的,应当承担民事责任。

The Committee opined that heroes and martyrs are “the embodiment of the nation’s ethos,” and that providing their legacies with stronger legal protections is of “great significance” to the promotion of core Socialist values.

This is not the first time in recent years that Chinese authorities seek to discourage speech against these historical figures, whose “deeds … are central to the [Communist] Party’s legitimacy,” wrote Reuters. In October 2016, the Supreme People’s Court released a set of five model cases in which two authors and one internet personality were separately sued for defaming and disparaging several heroes—and lost. Jeremy Daum has written about these cases at China Law Translate, observing that “[i]n the name of protecting the dignity and honor of national heroes, the cases have the effect of chilling speech that questions the nation’s official historical narrative.”

It should be noted that such a provision wasn’t found the first four drafts of the GPCL, even after three rounds of public comments. The NPC delegates might therefore be more “conservative” than the more elitist members of the NPCSC and the general public. However, it’s still telling that the Party approved, or at least didn’t object to, the inclusion of this article.

Government: “PLEASE go help others in distress.”

Last December, a new provision that protects Good Samaritans from civil liabilities absent gross negligence was added to the third draft of the GPCL, most likely to respond to the aftermath of an infamous 2008 tort suit in Nanjing, Jiangsu Province.

Long story short, Peng Yu, the self-proclaimed Good Samaritan in this case, helped a 65-year-old woman who was knocked to the ground. The woman then sued Peng for ~134,000 RMB ($19,000), claiming that he hit her in the first place. A court later ordered Peng to pay the woman roughly $7,000.

Due to a variety of reasons, Peng’s case was painted as one in which the Good Samaritan suffered financial loss for helping others—even though Peng later admitted that he did knock the woman down. Despite this (belated) revelation, the public in general had already become more reluctant to help a person in need. Though the NPC didn’t explicitly cite the impact of Peng’s case as the rationale behind the Good Samaritan provision, it said the provision was added to “rectify the social morality [匡正社会风气].”

According to Caixin, last Friday some delegates were still not satisfied that the provision could completely dissipate would-be Good Samaritans’ concerns, pointing to its “exception clause” which imposes civil liability when a Good Samaritan causes major undue damages to the aid recipient by acting with gross negligence.

After discussion, the NPC Law Committee revised the clause so that it now explicitly requires an aid recipient to prove gross negligence on the Good Samaritan’s part and any major undue damages caused as a result before a Good Samaritan is found liable—even then only to a “reasonable” degree.

Update (March 15, 2017): After the draft GPCL explicitly shifted the burden of proof to plaintiffs suing Good Samaritans, a newer draft—and likely also the version passed this morning—further afforded Good Samaritans greater protection. According to the Legal Daily, at the urge of some delegates, who were concerned that the exception clause would still be ineffective in eliminating Good Samaritans’ fear of retaliation, the NPC Law Committee deleted the clause altogether. Therefore, under the GPCL, Good Samaritans will be free from any and all civil liabilities for their emergency relief actions.

Next Steps

The delegates will spend tomorrow (March 14) deliberating yet another version of the draft GPCL. Further changes may be made, but we don’t expect anything substantial.

Then on Wednesday (March 15) morning, the NPC is expected to pass the GPCL. The law’s full text is expected to be released later that day.

As mentioned above, the GPCL is but a small, albeit key, portion of the civil code. The rest of code, as currently envisioned, will consist of separate parts [编] on property, contract, tort liability, marriage and family, and inheritance. To the dismay of many, personality rights [人格权] won’t form their own part—at least for now.

The code’s drafters plan to submit all separate parts to the NPCSC in 2018. After the NPCSC finishes its deliberations, which will take around two years, the entire code is planned to be submitted to the annual NPC session in 2020—at which point China will eventually have its first civil code, almost 70 years after the first attempt.

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