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Declaration of Rights Upholding Humanistic Concerns
July 17,2018   By:CSHRS

 Declaration of Rights Upholding Humanistic Concerns

WANG Yi*

March 15, 2017, is bound to be viewed as an important day in the history of law in China, as it was on this day that the General Provisions of the Civil Law of the People's Republic of China (hereinafter referred to as GeneralProvisions of the Civil Law) were adopted at the fifth Session of the Twelfth National People's Congress of the People's Republic of China with majority support, marking the smooth completion of the first step for the compilation of China's Civil Code. In the tradition of statute law, one of the important reasons people pay special attention to a country's civil code is that a national should use it to express standpoints and opinions on a series of basic issues. As a result, a civil code contains the spiritual code of a nation. If a nation is to be really understood, it is necessary to comprehend its civil code first. As the first step for compilation of the civil code, the adoption of General Provisions of the Civil Lawprovides a glimpse of the standpoints and opinions of the Chinese nation on a series of basic issues suggested in the civil code. Among all these issues, the most fundamental one is the attitude to people, the positioning of people, and the expectations of people.In the General Provisions of the Civil Law, people include natural persons, legal persons, as well as unincorporated organizations, and so on. Such people as legal persons and unincorporated organizations are of no biological significance. Apart from serving the needs of natural persons, there is no other justification for their existence. Therefore, it is definitely natural persons who are the core of different people. Because the purpose for the compilation of civil code in China is to promote the great rejuvenation of the Chinese nation, it pursues the economic success of the country and nation. It is understandable to keep the economic rationality of the civil code and give full play to its economic function, yet there is more than that, because economic growth is not the final ultimate goal but rather a means to ensure people's well-being. Ancient Chinese philosophers have stressed the “human-oriented” concept. For example, Confucius highlighted “benevolence” and Mencius said that “People are the most important, the state comes second, and the ruler is the least”. The civil code should be “human-oriented” and put humanistic concerns at the core and make them the most important links. It should respect both the instincts of juveniles and the freedom of adults. People are the final objective but not the method for realizing the other goals. China's Civil Code should take people as the subject to promote freedom and comprehensive development. It is based on this principle that the General Provisions of the Civil Law positions people and expresses expectations of them. Let's take a look at the following examples:

The first is about the regulation objects.

According to Article 2 of the General Provisions of the Civil Law, “the Civil Law regulates personal relationships and property relationships among natural persons, legal persons, and organizations without juridical personality, as equal parties”. According to article 2 of the General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as General Principles of the Civil Law) promulgated on April 12, 1986, and effective as of January 1, 1987, which is another milestone in the history of law in China, “The Civil Law of the People's Republic of China shall adjust property relationships and personal relationships between civil subjects with equal status, that is, between citizens, between legal persons and between citizens and legal persons. The General Provisions of the Civil Law gives priority to personal relationships over property relationships, which is an important change and adjustment to the legal concept. The reasons are as follows:

First of all, old generations of jurists represented by Tong Rou put forward and interpreted the concept of civil law based on a commodity economy to provide theoretical support for the smooth promulgation of the General Principles of the Civil Law and theoretical basis for the survival and development of the civil law. The core content of the Civil Law based on commodity economy is the civil law is the basic law for adjusting commodity economic relationships and the development of socialist commodity economy in China cannot be separated from its civil law. It emphasizes the function of the Civil Law in organizing resources and promoting national economic development. Against such a theoretical background, it is justified to put the regulation of property relationships before the regulation of personal relationships. The background for drafting the General Provisions of the Civil Law is apparently different. Development of the socialist market economy is included in the preface of the Constitution of the People's Republic of China and it is further clarified in article 15 that the state practices a socialist market economy. It has been a basic legal consensus that the Property Law of the People's Republic of China and Contract Law of the People's Republic of China are basic laws for adjustment of the socialist market economy. We can now take a broader perspective on the role of civil law and it is not necessary to justify the survival and development of civil law through emphasizing its economic function.

Secondly, the General Principles of the Civil Law was compiled in the initial phase of the reform and opening up of China when the top priority for the country was to promote economic development and solve the problem of food and clothing. It was in line with the shared consensus of most Chinese people to put the regulation of property relationships before regulation of personal relationship to ensure the survival of the people first and then confirm and guarantee the freedom and dignity of the people. In the second decade of the 21st century, economic development is still important for China, yet it has been clarified in article 33 of the Constitution that “the state respects and protects human rights.” Therefore, it is more in line with the shared consensus of most Chinese people today to uphold the concept of humanistic care and prioritize the full confirmation and guarantee of personal freedom and dignity.

The second is about the civil rights.

Chapter V of the General Provisions of the Civil Law is about civil rights. Articles 109 to 112 confirm and guarantee personal rights first. From article 113, it confirms and guarantees property rights. Article 110 confirms the rights to life, body, health, name, portrait, reputation, honor, privacy, and marriage by choice of natural person as well as the rights to name, reputation, and honor of legal persons and organizations without juridical personality. Article 111 emphasizes that the personal information of a natural person shall be protected by law. It should be noted that article 109 confirms that the personal freedom and dignity of natural person shall be protected by the law. The guarantee of the personal rights in Article 109 provides the basis for making new provisions and laws. The arrangement not only echoes article 2 of the General Provisions of the Civil Law, but also highlights the priority of it in confirmation and guarantee of personal rights, laying a detailed and solid foundation for confirmation and guarantee of personal rights in the compilation of the civil code.

The third is about protection of vulnerable groups.

There are special rules for protection of vulnerable groups in the General Provisions of the Civil Law. For example, it is stipulated in article 128 that “the specific regulations on protection of rights of juveniles, the old, persons with disabilities, women, and consumers shall be followed.” It is noteworthy that the General Provisions of the Civil Law greatly improves the protection for fetuses as compared to existing civil laws. In the existing civil laws, only the Law of Succession of the People's Republic of China provides relevant contents in Article 28 that “at the time of the partitioning of the estate, reservation shall be made for the share of an unborn child. The share reserved shall, if the baby is stillborn, be dealt with in accordance with statutory succession.” Article 16 of the General Provisions of the Civil Law provides more thorough contents. It confirms that the premise for the capacity for civil rights of a fetus is that it is not stillborn. On this basis, where the protection of the interests of a fetus is involved in, among others, a succession or acceptance of a gift, the fetus shall be presumed to have a capacity for civil rights. Fetuses are the weakest of the weak. They cannot express any emotion or present their demands through language. The attitude of a country to fetuses in the civil legislation therefore particularly reflects its degree of civilization. The General Provisions of the Civil Law improves the protection for the rights of fetuses, which symbolizes the advancement of legal civilization and reflects humanistic concerns. The General Provisions of the Civil Law can thus be regarded as a declaration of rights upholding humanistic concerns.

(Translated by HU Liang)

* WANG Yi ( 王轶 ), Dean of Renmin University Law School.

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