On 1 January 2021, the People's Republic of China (PRC) promulgated a new Civil Code,Footnote 1 the longest and most ambitious piece of legislation in the history of the PRC. The Code is a massive legal edifice, involving 84 chapters, and 1,260 articles. It assembles and revises large swathes of law previously codified with great fanfare – of contracts, consumer protection, marriage and the family, property, security, and tort, while also covering new areas. Officials of the Communist Party of China (CPC) have celebrated the new Code as the would-be ‘cornerstone’ of ‘national governance’ and the ‘rule of law’. The Civil Code expresses the ‘fundamental social norms’ of Chinese society, serving to ‘enhance the humanistic spirit of China's law on the basis of human dignity’, while ‘protecting the rights of natural persons’.Footnote 2 Because the Code is fully justiciable, there is good reason to believe that it will become the ‘“real” economic constitution’ in the PRC. Yet there is a great deal of uncertainty about how it will evolve, issues that will be debated by lawyers, social scientists, and students of business and governance for decades to come.
The Civil Code is the centerpiece of a series of recent, highly-publicised moves on the part of the CPC to strengthen statutes and the autonomy of courts, while pledging to maintain the party's tight control over the legal system's development. The effort reveals a basic tension. On one hand, the charter of rights announced by the Constitution of the PRC is non-justiciable; indeed, a Decision of the Supreme People's Court (SPC) famously prohibited constitutional judicial review (CJR) in 2008.Footnote 3 On the other hand, the Civil Code is fully judicially-enforceable, although the Code contains many of the rights included in the Constitution, as well as most of the rights found in Western states where CJR operates routinely. Further, through interpretation and application of legal norms, courts participate in the law-making function, at a minimum, through gap-filling, which ostensibly conflicts with the PRC's power structure. This article explores this tension in depth, through an analysis of relevant legal scholarship, the decision-making of the Supreme Peoples’ Court, and the development of mechanisms of control available to the legislature, the National Peoples’ Congress (NPC). As a matter of institutional analysis, the situation embodies a classic ‘principal-agent’ problem: rulers (as principals) have delegated expansive lawmaking authority to judges (as agents), yet retain the means to constrain that lawmaking when they see fit to do so.
As a matter of comparative law, the relationship between the Constitution and the Civil Code in China deserves to be considered in its wider context. As most Chinese scholars know, in the Federal Republic of Germany, the private law has been subject to steady ‘constitutionalisation’Footnote 4 since the 1950s, under the tutelage of the German Federal Constitutional Court (GFCC).Footnote 5 In China, legislators were heavily influenced by the German Civil Code, and legal scholars have recognised and debated the importance of the German situation. In recent decades, the basic features of the constitutionalisation phenomenon diffused within Europe, as well as to the Americas and South Africa, and to South Korea and Taiwan in Asia.Footnote 6 This comparative context is directly relevant to present-day China. Comparative materials have informed some Chinese legislative officials; many parts of the rest of the world will be keenly interested in how China implements its new Code; and comparison helps us to sharpen the focus of our analysis, while helping us to see the range of potential paths that might be taken. It bears emphasis in advance that we are not claiming that the PRC will follow in the footsteps of Germany or others. Indeed, as discussed, there are important reasons to doubt that such a result could occur, given the absence of rights-based CJR in the PRC. Nonetheless, comparative analysis raises important issues that Chinese authorities will soon face head on.
The article proceeds as follows. It first summarises the process through which the private law was constitutionalised. Chinese elites were broadly aware of these developments, and they debated them with different degrees of sophistication during the drafting of the new legislation. Then, we discuss the constitutional dimensions of the Chinese Code, which enshrine norms that are typically understood as fundamental rights outside of the PRC. These include human dignity, equality, freedom and personal liberty, property, and the protection of ‘personality rights’, which are comprised of rights to personal honor and reputation, name and likeness, and privacy. Echoing the German Civil Code (which dates from 1900), the Chinese Code also contains ‘general clauses’ that enable the courts to restrict enumerated rights and entitlements for reasons of ‘good morals’, ‘public order,’ and the rights of others. We then turn to discourse and practice in the subsequent Part, which describes and assesses the often fierce scholarly debate in the PRC on the wisdom and feasibility of linking the Constitution and the Civil Code. The Part thereafter examines the means available to governing elites to control how the judiciary will interpret and apply such provisions, through the SPC, the NPC, and certain organs of the CPC itself. Finally, we consider various prospects for the evolution of the legal system in light of these control mechanisms.
The ‘Constitutionalisation’ of the Private Law in Comparative Perspective
For present purpose, by ‘constitutionalisation’ of the private law, we refer to the process through which (i) constitutional rights evolved as sources of private law that can be pleaded by litigants and enforced by the ‘ordinary’ courts, and (ii) the techniques of constitutional interpretation became important modes of argumentation and decision-making in non-constitutional courts, in particular when enforcing the Civil Code. Looking back on this process, two points stand out. First, decisions of a constitutional (or unified supreme) court to bestow horizontal effect to constitutional rights in the private law not only increase the importance of rights protection throughout the legal system, they enhance the relative powers and status of the constitutional court with respect to the parliament and all other judges. Second, virtually every powerful rights-protecting apex court in the world has sought to do so. Here we examine some of the main features of the ‘constitutionalisation’ phenomenon.
The Federal Republic of Germany
Neither the founders of the Federal Republic's Basic Law (1949), nor the members of its lower house of the Parliament (the Bundestag), meant for the Civil Code to be constitutionalised. Instead, the GFCC took the crucial steps in doing so, during the first decade of the Federal Republic. In Germany, this process destroyed certain orthodoxies of separation of powers, in particular notions to the effect that (i) the domains of ‘public law’ and ‘private law’ were to be kept strictly separate, and (ii) the Basic Law (1949) did not require the ‘ordinary (non-constitutional) judges’ to interpret and apply the Basic Law, which was the exclusive province of the GFCC.
The German legal system is comprised of multiple, ‘supreme’ courts, for: civil and criminal litigation; administrative law; tax and finance; labour law; and social security. From this perspective, the GFCC is a sixth high court, whose assigned task is to resolve constitutional disputes. According to the Basic Law, the GFCC is not formally a ‘judicial body’, but a specialised organ whose task is to give formal answers to constitutional questions, while possessing the power to invalidate any legal act it finds contrary to the Basic Law. At the same time, the GFCC is arguably the most important of all jurisdictions, as the authoritative interpreter of the Basic Law, whose charter of rights binds all public officials, including every judge.Footnote 7
The constitutionalisation process was driven by two major factors: inter-court rivalry; and the consequences of two landmark rulings of the GFCC. In Elfes,Footnote 8 the GFCC held that Article 2(1)Footnote 9 of the Basic Law presumptively covered any action a person might choose, subject to permissible limitations on the part of state officials to protect the ‘rights of others’, and to defend the constitutional and moral orders. As applied in a long line of cases, the Elfes (1957) judgment made it clear that the charter was not restricted to rights enumerated in the Basic Law; indeed, Article 2(1) comprised an open-ended recognition of general ‘liberty.’ Given the virtually unlimited scope of Article 2(1), individual freedom and autonomy would naturally impact upon the private law. In its Lüth (1958) ruling,Footnote 10 the GFCC stipulated that the charter of rights – which it characterised as a normative system constituted by ‘objective constitutional values’ – attaches to all societal relations, ‘radiating’ outward, from the constitution to the civil code. The Court stressed that these ‘values’ infused the private law in ways that bound the judiciary. Moreover, the GFCC insisted that the ordinary judges must ‘balance’ those rights (of the Basic Law) against the private autonomy of the parties (enshrined in the provisions of the Civil Code), or two contending right against each other, in the context of the litigation at hand. In hundreds of subsequent decisions, the GFCC would require that judges of the Civil Code enforce the proportionality principle when engaged in such balancing, and that the ‘correctness’ of such decisions would be reviewable by the GFCC through the constitutional complaint procedure.Footnote 11 Indeed, the diffusion of the proportionality principle went hand in hand with the consolidation of the horizontal effect of rights. The constitutional complaint has since become a routine cause of action against the judgments of ordinary courts, in essence, ‘appealing’ judicial rulings that fail adequately to apply constitutional rights, as conditioned by the GFCC's case law.
The GFCC took these decisions in the context of fierce inter-court competition for prestige and policy influence. Upon the advent of the new Basic Law, the Federal Labour court had decided to enforce the charter of rights directly, without authorisation from the GFCC or the legislator, in litigation between private parties. On the basis of the Labour courts’ theory – which articulated the position now known as the ‘horizontal direct effect’ of constitutional rights – the power of CJR could easily have diffused to all courts, converting the ‘concentrated’ system of reviewFootnote 12 into something akin to the ‘diffuse’ system of CJR associated with the USA.Footnote 13 In this struggle for authority, the labour courts would have emerged the big winner, and the GFCC the loser. For their part, the civil courts had long treated the Civil Code as a ‘quasi-constitutional’ instrument of governance and nation-building,Footnote 14 overtly deploying natural law notions when interpreting the Code, which had grown to include more than 2,300 sections. The supreme court – now called the Bundesgerichtshof (BGH) – had long possessed enormous prestige, however diminished by complicity with the recent Nazi horrors. In contrast, the GFCC was a fledgling newcomer. Hovering in the background was the classic ‘public’ versus ‘private’ law divide. Traditionalists assumed that the domain of public law was limited to issues revolving around the relative competences of state institutions and public authority. However, following from state theory developed during the Weimar Republic by Smend and others,Footnote 15 the constitutional law could be conceived as a body of higher norms capable of unifying the juridical and political state, not least, as a matter of formal hierarchy and positive law. Indeed, Smend's ideas of ‘constitutional integration’ of law and society heavily informed the GFCC's early jurisprudence of objective constitutional ‘values’ in Lüth.
Thousands of commentaries on Elfes and Lüth have been written.Footnote 16 For present purposes, what is important are certain strategic (political) logics. First, the Elfes line of jurisprudence made it clear that Article 2(1) ‘protects every form of human activity without consideration of the importance of the activity for a person's development’.Footnote 17 It follows that there would be no need for the BGH's reliance on natural law norms or reasoning to ‘fill gaps’ or generate ‘new’ rights, since the Basic Law itself already contained any unenumerated right that might be pleaded in litigation. Second, Lüth precluded the position charted by the Federal Supreme Labour Court, while announcing that rights were instead possessed of ‘horizontal indirect effect’ (stipulating that the codes must be interpreted in conformity with the Basic Law). Thus, although constitutional rights could not be directly pleaded, inter partes, all judges were under an institutional obligation to harmonise the private law with the Basic Law. In this part of Lüth, the GFCC acknowledged the relative autonomy of the ordinary courts: a private law dispute would ultimately remain litigation organised by the private law. Third, the constitutionalisation process would proceed through judicial balancing and dialogue, which would necessarily unfold in fluid, case-sensitive ways. The GFCC could control the contours of the process, through the constitutional complaint procedure. Put differently, the GFCC delegated some of its authority to interpret the charter of rights to the ordinary courts, but retained its exclusive power to annul statutes and all other infra-constitutional legal acts, including the rulings of the ordinary courts. Fourth, the process quickly exhibited its capacity to displace the legislator, as when a judge ‘rewrite’ the Civil Code so that it includes provisions that the parliament have already explicitly rejected. In the Soraya (1973) case, the courts did just that, by supplying a remedy for damages when one's ‘right of personality’ (privacy) has been violated by another, despite the fact that the Bundestag had pointedly refused to do so on several prior occasions.Footnote 18 The Civil Code is legislation, but it must remain compatible with the dictates of the Basic Law, the ultimate master of which is the GFCC.
The GFCC's pronouncement of the ‘horizontal indirect effect’ of rights may well have yielded rhetorical benefits, communicating to ordinary judges that the GFCC was prepared to engage in a certain degree of inter-court dialogue and diplomacy. But the holding did not end inter-court rivalry. BGH judges and civil law scholars continued to criticise Lüth as a usurpation of the power of the civil courts, and conflicts have regularly flared into the open.Footnote 19 In the end, judges and scholars have accepted the basics of Lüth, in large part, because it expanded the constitutional competences and status of the BGH and other courts as the status of rights-based judging was increasing domestically and in the European courts. In any event, the holding did not stop the constitutionalization of the private law. Indeed, as Kumm argues,Footnote 20 the distinction between ‘direct’ and ‘indirect’ horizonal effect proved to be devoid of practical relevance, not least because the ordinary courts were placed under a reviewable obligation to ensure that the private law was compatible with the charter of rights when the latter was in play.
The European Union
Chinese officials and scholars rarely discuss the case of the European Union (EU). In the EU, there is no unified civil code, although a series of major efforts at producing a ‘harmonised’ civil code began in the 1980s and continue into the present.Footnote 21 That said, the founding treaties of the EU contained certain fundamental rights of a private law nature. With its decision in Defrenne II (1976), the Court of Justice of the EU (CJEU) went further than the GFCC, announcing the horizontal direct effect of the ‘equal pay for equal work’ provision of the Treaty of Rome, a decision that would ground the expansive development of the sex equality domain ever since, as well as non-discrimination in the workplace more generally.Footnote 22 After the CJEU's Cassis de Dijon (1979) ruling (on the free movement of goods) served to revive European integration,Footnote 23 EU legislators adopted a series of ‘directives’ that constituted – and ‘constitutionalised’ – the EU's private law.Footnote 24 This corpus is today considered to be a type of ‘economic constitution’.Footnote 25 EU Directives separately cover broad areas of private law, including consumer rights and protection, unfair terms in contracts, e-commerce, financial services, social security and private pension schemes, non-discrimination on the basis of ethnicity, age, gender, and sexual preference, etc.
In December 2000, the EU codified a Charter of Rights, which binds not only the EU but the member states, including national courts, whenever they implement EU legal norms within domestic legal orders. The Charter contains a handful of ‘absolute’ rights: to human dignity (Article 1), the right to life (Article 2), and the integrity of the person (Article 3); to the prohibition of torture and inhuman treatment (Article 4), and of slavery and enforced labour (Article 5). These are followed by long list of both negative and positive rights that are qualified by a limitation clause, including the rights to education (Article 14), work and choice of occupation (Article 15), fair and just working conditions (Article 31), social security and social assistance (Article 34), health care (Article 35), services of ‘general economic interest’ (Article 36), environmental protection (Article 37), and other ‘social rights’, some of which have no analogs in Chinese law. Article 52 of the EU Charter echoes the case law of the European Court of Human Rights: authorities must respect the proportionality principle when enforcing qualified rights.
Any limitation on the exercise of the rights and freedoms … must be provided for by law and respect [their] essence. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
Sacha Prechal – currently a justice on the CJEU – put the issue of the horizontal effect of Charter rights in this way:
[F]undamental rights are frequently … perceived as [an] expression of values that underlie the entire legal order, public and private; they are so elementary that they must be applicable in both private and public law relationships. This may explain why [they] are often couched in general terms, without mentioning the duty bearers of these rights. According to the Court … fundamental rights are essential values permeating the entire EU legal order and therefore may produce, under certain conditions, horizontal direct effect.Footnote 26
The bottom line is that, as the field of EU private law expands, so does the legal obligation to interpret and apply its elements in light of the Charter.
In addition to the Charter of Rights, the CJEU controls the interpretation of the ‘general principles’ of EU law, which includes a list of rights that the CJEU began to construct in the 1970s, on the basis of the European Convention, and the ‘constitutional traditions’ of the member states. The general principles have treaty rank (that is, ‘constitutional status’), which the CJEU and national courts have leveraged to upgrade the effectiveness of national standards of rights protection. The German labour courts, for example, had opposed (since the 1950s) the GFCC's refusal to extend full proportionality analysis to the right of non-discrimination with regard to certain discriminatory wage agreements. During the 2004–2006 period, however, the Federal Supreme Labour Court and the CJEU forged a powerful interpretive alliance that eventually forced the GFCC to do so, after the matter had been ‘constitutionalised’ under EU directives, general principles, and a landmark rulingFootnote 27 of the CJEU.Footnote 28
As these developments make clear, the migration or ‘radiation’ of rights-based adjudication of private law disputes in Europe also codified the view that rights necessarily possessed ‘horizontal’ properties, given that private power often rivalled or surpassed the power of the state in certain domains. Under this view, there can be no firm distinction between public and private law, insofar as an overarching purpose of law is to remedy unlawful harms caused by the actions of any actor possessed of otherwise unconstrained power.Footnote 29
Diffusion
At the domestic level, complex, multi-dimensional paths of integrating the constitution and the private law are taking place across the globe, including in Asia. In common law systems, the Constitutions of Ireland (1932) and South Africa (1996) explicitly provide for the horizontal direct effect of rights, which gradually led to routine judicial enforcement of rights in private law litigation.Footnote 30 In India,Footnote 31 the innovative construction of the constitution by the courts have ‘transformed’ the private law. In Canada, a labour dispute led the Supreme Court of Canada to adopt an important, if weaker, version of horizontal indirect effect with respect to the common law, once the 1982 Charter of Rights entered into force.Footnote 32 In civil law systems, one finds newer constitutions gradually impacting, or reflected in, much older civil codes, as in Brazil (whose present Constitution dates from 1988, while its Civil Code was adopted in 1916).Footnote 33 In Colombia, the Constitutional Court has since the 1990s fully committed to extending the reach of rights into the private law,Footnote 34 leading an association of civil law professors to openly oppose some of its Court's most important opinions on the topic.Footnote 35
Curiously, Chinese scholars rarely mention the Asian cases, despite the fact that civil codes of German inspiration are common in the region, and to China itself. The Taiwan Area of China and South Korea possess powerful constitutional courts that embraced German-style doctrines, as means of unifying the legal system and enhancing the effectiveness of rights protection.Footnote 36 In South Korea, the Supreme Court issued a landmark ruling in 2010Footnote 37 that formally recognised the horizontal indirect effect of constitutional rights on the private law and the Civil Code of 1958, consolidating prior case law that had implied as much. Decisions strengthened the protections afforded to claims of inheritance, labour law, privacy and defamation, religious education, and of non-discrimination of transsexuals, was produced in the context of intense inter-court rivalry, a situation reminiscent of the German case. In consequence, the Supreme Court found it ‘necessary’ to embrace the horizontal effect of rights, not least, to ‘enhance’ its own relative prestige.Footnote 38 In the Taiwan Area, the constitutional reconstruction of the Civil CodeFootnote 39 gathered momentum in the 1990s, particularly with respect to freedom of expression, labour relations, gender equality,Footnote 40 and family law, as the Constitutional Court built and reinforced its CJR authority.Footnote 41 As in South Korea, many past and current judges and legal scholars of the Taiwan Area have pursued graduate studies in Germany, and the Lüth line of cases has been widely discussed.Footnote 42 In January 2022, a constitutional complaint procedure was added to the jurisdiction of the Constitutional Court, which is likely to bolster its authority vis-à-vis the ordinary judges and the Supreme Court of the Taiwan Area. In contrast, in Japan a very weak form of horizontal indirect effect can be discerned, a product of relatively passive deployment of CJR.Footnote 43
In summary, the constitutionalisation phenomenon contains elements of congruence in that a broad range of legal systems have embraced its main features, while being multi-faceted and diverse on the ground, in any specific polity.
China: The Constitution, the Civil Code, and Judicial Review
When one examines the nature and scope of the Chinese Civil Code, one is struck by another commonality identified and analysed by scholars of comparative constitutional law scholars: arguments to the effect that certain pieces of ordinary law have been held to reflect the constitutional precepts and values of the polity. These are ‘super statutes’, which are common to civil and common law systems.Footnote 44 The CPC has firmly embraced the notion that particularly important meta-statutes are a necessary feature of ‘good governance’ in the PRC, whereas the ‘super statute’ label, given its constitutional associations, would lead to fierce contestation. In any event, the Civil Code is not only a ‘super-statute’, it has generated intense controversy and constitutional debate (as discussed below).
Political Supremacy and Judicial Review
The evolution of a state-controlled, ‘market-based’ economy in China has entailed extensive legal reform since its advent in the 1980s.Footnote 45 The CPC has overseen several major amendments to the Constitution, and promoted new legislative regulatory frameworks, some of which (eg, the 2007 law on property) were subject to intensive debate over more than a decade before final adoption by the NPC. In recent years, the pace of ‘comprehensive’ statutory reform has accelerated, with the NPC passing major reforms on tort liability (2010), consumer protection (2013, 2018, 2019), e-commerce (2019), banking and finance (2017), among others, some of which have been absorbed into the most far-reaching of all: the Civil Code (2021). Some of these statutes touch directly on the powers of the courts, such as the administrative litigation law (2014, amending the 1989 Act), which seeks to strengthen administrative judicial review, including extending standing rules, clarifying those related to public interest actions, and creating new remedies binding on administrative authorities.Footnote 46 In 2018, the NPC conferred vast competences on what is now a super-ministry – the State Administration for Market Regulation – to adopt and supervise regulation across sectors as diverse as food, drugs, cosmetics, intellectual property and internet services, as well as to supervise compliance with anti-trust rules. Thus, considered as ‘law on the books’, the Chinese regulatory landscape has been transformed.
At the same time, the CPC has rationalised and reinforced its own centralised, ‘political’ supervision of the courts. The current ‘conventional understanding’Footnote 47 rests on the view that several inter-locking systemic issues had been settled in the 2000s. The first concerns the prohibition of CJR.Footnote 48 In 2008, an SPC Decision destroyed a movement led by certain judges and legal scholars in favour of CJR. As readers will know, the Qi Yuling litigation, which unfolded over a decade, formally concluding in 2008 when the SPC repudiated an earlier decision to the effect that the right to education, enshrined in the Constitution of the PRC, was directly effective in a private dispute. We will return to the Qi Yuling saga later on in the article. The second issue involves the importance of constitutionalism and state theory more generally. The SPC's reversal in 2008 capped a larger process in which the CPC had made it abundantly clear to academics, litigators, and judges that the Constitution was a ‘dead-letter,’Footnote 49 and off limits for discussion. This institutionalised taboo meant that the basic tenets of rights-based constitutionalism, which had diffused across the world since the end of World War II,Footnote 50 were anathema. These decisions, however, left open the answer to a third question: how does the Party and the NPC ensure the compatibility of legislation with the Constitution? After all, the Constitution – as the CPC continued to insist – comprised positive law, anchoring its own legal authority.
In response, party elites have built a system of control mechanisms, including bolstering what amounts to the ‘political review’ of legislation (in contrast to ‘judicial’ review). Historically, in legislative sovereignty systems, political review of the constitutionality of legislation has at times been a normal component of parliamentary life. To take just one example, what is now the French Supreme Court (the Cour de Cassation) evolved from a committee of parliament (established in the Constitution of 1795) to answer questions of statutory interpretation, given that the judiciary was forbidden to do so.Footnote 51 In the French Third Republic (1870–1940), eminent scholars even argued that Parliament functioned as a type of constitutional ‘court’ (jurisdiction), whenever it decided questions of constitutionality,Footnote 52 a procedural legacy that exists to this day (in the guise of the motion d'rrevabilité of the National Assembly and the Senate). We discuss the present system of Chinese ‘political review’ later on in the article. Meanwhile, the judiciary has itself been significantly restructured, through the so-called ‘quota-reform’ initiatives that took place in the 2014–2017 period, but which have been discussed since at least the late 1990s. The reforms, overseen by the Supreme People's Court, were meant to reduce the size of the judiciary, and enhance the accountability of judges, without necessarily re-‘imagining’ their independence from the Party.Footnote 53
Embracing the ‘Rule of Law’
Notwithstanding the fact that CJR was formally prohibited in 2008, the CPC has prioritised the ‘rule of law’ at least since 2014. In China, the phrase the ‘rule of law’ encompasses a complex blend of ideological and legal meanings. For present purposes, the phrase entails formal commitments: (i) to govern through more detailed statutes, and (ii) to enhance the liability of officials working at the provincial and local levels, and (iii) to confer greater autonomy on judges to enforce both. The strict control of the Party over the courts is presumed to be consistent with these goals, a fact that many consider to be in contradiction with ‘rule of law’ requirements.Footnote 54
A long list of official pronouncements has gathered in force. In 2014, the Central Committee of the CPC issued a Decision on Several Important Questions related to the Full Promotion of Ruling the Country According to Law, which called for ‘improvements to supervisory mechanisms of constitutional implementation’.Footnote 55 The Decision also required all citizens, public officials, state organs, the armed forces, political parties, and social and corporate entities to ‘treat the Constitution as a fundamental norm … and assume the duty to defend the Constitution's dignity’.Footnote 56 In 2021, the Central Committee adopted its Plan on Building the Rule of Law in China (2020–2025), which restated the Party's determination ‘to persist in the supremacy of the Constitution and the law, strengthen the unity, dignity, and authority of the legal system,’ while emphasising that ‘no laws, regulations, or legal documents may conflict with the Constitution’.Footnote 57 President Xi called attention to the Constitution's ‘higher law’ status, promising before the 19th CPC National Congress (2017) that the state would ‘ensure compliance with the Constitution, advance constitutional review, and safeguard the authority of the Constitution’.Footnote 58 By ‘constitutional review’, Xi was likely referring to reinforced procedures of the NPC and its Standing Committee (examined below).
There have always been gaps between ‘law on the books’ and ‘law in practice’ in the PRC. Like the Constitution, statutes, no matter how much they are publicised and celebrated by the CPC or the NPC, have not always been enforced as anything more than aspirational frameworks dressed in the trappings of law. Further, the best empirical research has demonstrated that the CPC has taken pains to maintain ‘multi-layered mechanisms’ of ‘pressure’ and control over the courts, which have been tightened under President Xi's tenure.Footnote 59 The new Civil Code of 2021 brings these tensions – given the prohibition of CJR – to the forefront.
The Norms and Structure of China's New Civil Code
The Civil Code (2021) contains legal norms that most modern constitutions present in the form of justiciable rights. These include human dignity, equality, liberty, freedom of movement, due process, personality rights (to one's name, personal honor, privacy, honor and reputation), prohibitions (of, inter alia, unlawful search and seizure; of defamation and libel; of harming the rights of others), and a host of social and economic rights (to work and to rest, to education, to social insurance schemes, to marry and inherit, to child support, inter alia), as well as various norms non-discrimination. In addition, the Code contains rights that are not found in the Constitution, including certain civil rights of the foetus (Article 15), the right to life (Articles 110 and 1002), the right to health (Articles 110 and 1004), the right to intellectual property (Article 123), the right of sexual harassment victims to seek declarations of liability of the tortfeasor and compensation (Article 1010), among others. The Civil Code therefore potentially is more ‘complete’ than the Constitution, and has the potential to displace Constitution when it comes to rights.
Modern charters of rights, both national and international, share certain core features.Footnote 60 A small number of fundamental rights are expressed in absolute form, that is, they are not qualified by a limitation clause. From this vantage point, the most important provision of the Code is Article 110:
A natural person enjoys the right to life, the right to corporeal integrity, the right to health, the right to name, the right to likeness, the right to reputation, the right to honor, the right to privacy, and the right to freedom of marriage. A legal person or an unincorporated organization enjoys the right to entity name, the right to reputation, and the right to honor.
Further, the rights to life, dignity, health, and bodily integrity, ‘are protected by law and free from infringement by any organisation or individual’ (Articles 1002, 1003, 1004 and 1005). Most rights, however, are subject to a ‘limitation clause’, which in other legal systems explicitly authorises state officials, including judges, to restrict the scope of the right for some sufficiently important public purpose.
Limitation clauses come in one of two forms: (i) an umbrella license to abridge a cluster of rights, or all rights (eg, Article 1 of the 1982 Canadian Charter of Rights and Freedoms); and (ii) a bespoke clause attached to a single right (eg, Article 6 of the German Basic Law, enumerating the right to marriage and family life). The Civil Code, of course, is not a charter of rights; nonetheless it exhibits a mix of these familiar features. General limitation clauses are announced in Article 8 (‘When conducting a civil activity, no person of the civil law shall violate the law, or offend public order or good morals’), and Article 132 (‘No person of the civil law shall abuse his civil-law rights and harm the interests of the state, the public interests, or the lawful rights and interests of others’). In China, it is assumed that ‘public policy’ and ‘good morals’ most immediately refers to the policy goals of the CPC and the Party State.
Specific limitation clauses too are scattered throughout the Code. Article 1012 reinforces Article 8:
A natural person enjoys the right to name, and is entitled to determine, use, change, or allow others to use his name in accordance with law, provided that public order and good morals are not offended’.
Article 999 relies on ‘reasonableness’ considerations:
The name, entity name, likeness, personal information, and the like, of a person of the civil law may be reasonably used by those engaged in news reporting, supervision of public opinions, or the like, for public interests, except that civil liability shall be borne in accordance with law where the use unreasonably harms the personality rights of the person.
And Article 1020(1) introduces both ‘reasonableness’ and ‘necessity’ requirements:
The following acts, if done in a reasonable way, may be performed without the consent of the person holding the right to likeness: (1) using publicly available images of the person holding the right to likeness to the extent necessary for personal study, art appreciation, classroom teaching, or scientific research.
In Europe, these types of provisions – like the general clauses on ‘public order’ and ‘good morals’ – have led to the penetration of constitutional rights, as well as the constitutional command to enforcement the proportionality principle.
We have left three structural properties of the Civil Code for last. First, Article 3 makes it clear that the Code is fully judicially enforceable, including against state officials:Footnote 61
The personal rights, proprietary rights, and other lawful rights and interests of the persons of the civil law are protected by law and free from infringement by any organisation or individual.
As important, the Code creates new causes of actions and remedies, a good example being for sexual harassment.Footnote 62 Second, the Code is not strictly private, in that it binds public authorities (eg, Article 243 authorises the expropriation of property, for public purposes, but subject to compensation and other ‘lawful rights and interests’), and will often overlap litigation challenging administrative acts.Footnote 63 Third, Article 1 states that the Code complies with the Constitution:
This Law is formulated in accordance with the Constitution of the People's Republic of China for the purposes of protecting the lawful rights and interests of the persons of the civil law, regulating civil-law relations, maintaining social and economic order, meet the needs for developing socialism with Chinese characteristics, and carrying forward the core socialist values.
Article 1, of course, raises primordial issues. Does either the Code or the Constitution evolve and, if so, through what processes? Does Article 1 require a doctrine of horizontal effect of the constitution and rights? If so, to what extent must the prohibition of CJR be modified? Third, the most important rights enumerated in the Code are simply announced, often without giving any interpretive guidance to judges.
Thus, considered as an instrument of delegation, the Civil Code expressly charged judges with the task of enforcing vague, incomplete, open-ended norms. This indicates that the CPC meant to empower judges with the necessary authority of interpretation and lawmaking, at least in individual cases.
The Scholarly Debate
Civil law systems have traditionally glorified the role of parliamentary and downplayed that of the courts. The judge, in Merryman's memorable words, is conceptualised as an ‘operator of a machine designed and built by legislators’.Footnote 64 At the same time, la doctrine – legal scholarship – occupies an honored place. Scholars are the quasi-official commentators, intellectual critics, and adjunct reformers of statutes and the legal system itself. In Europe, scholars have, at times, rebelled against the dogmas of parliamentary supremacy; indeed, in the late 19th century and early 20th centuries, the vast majority of French and German publicists aggressively sought to convince the judiciary to overthrow the prohibition of judicial review.Footnote 65 In most periods, however, law professors reenact their primary role: as faithful agents of the ‘law on the books’.
In China, much of the CPC's decision-making is left opaque and undocumented, which has meant that observers at times treat scholarly writings as a surrogate means of evaluating the preferences of the CPC. New trends in scholarship can be harbingers of legal change, revealing institutional friction and judicial unease. Compared to Chinese judges, scholars work under fewer constraints, both formal and informal. Morevover, many scholars worked on the drafting of the new Code. Nonetheless, if scholars are to challenge established views, they will consider the potential negative consequences of their words, including whether their writings will incur official disapproval or even formal punishment.
The Civil Code has reincarnated some of the most polarising legal debates in the PRC's history, including questions concerning CJR. Simplifying a complex set of debates, some scholars argue that the Civil Code – the center of gravity for the ‘private law’ – should be kept as separate as possible from the Constitution (the basis of ‘the public law’). A latent threat is implicit: to seek to revive old controversies concerning rights and review would be dangerous to the academic community and, ultimately, to the judiciary. A second group underlines the fact that the NPC itself designed the Code to be a special type of statute – a paradigmatic example of a Chinese ‘super statute’ – which explicitly proclaims the state's commitment to fundamental rights. A third group goes even further, asserting that the Civil Code is a legitimate, even necessary, vehicle for the development of the Constitution of the PRC, enforceable rights, and the legal system. Significantly, these scholars commonly deploy German and comparative legal materials to bolster arguments in favour of ‘constitutionalising’ the private law in China.
The Strict Separation of Private and Public
Conservatives defend preserving the pre-Code legal system as much as possible. For this group, the Code was meant to build on existing precepts of the private law, extending without transforming them. The core of the argument – orthodoxy in Europe prior to Lüth – is that the public law and the private law are autonomous legal domains. Long, the dean of the Beihang law faculty, claims that Article 1 of the Code establishes only a procedural requirement, at most, trite law.Footnote 66 Confirming that the Constitution permits the NPC to adopt the Code closes inquiry into the statute's legality. Substantive incompatibilities between the two texts should be tolerated or ignored. Although Long does not oppose interpreting the Code in harmony with the Constitution, he rejects any suggestion that the Code ‘implements’ the Constitution, or makes the latter ‘indirectly’ justiciable. The Constitution is not the ‘parent’ of the Code; and the Code's internal force does not depend on the Constitution, except in the banal procedural sense just mentioned. Moreover, Long, and others assert that a correct understanding of Chinese and comparative history would not support a ‘constitutional’ reading of the private law. Consolidating the private law deserves to be acclaimed, but not because it embodies the PRC's constitutional values.
The Civil Code as the ‘Fundamental’ Law of China
In a 2020 article featured in China Law (a journal subtitled, ‘A Professional, Authoritative Record of the Rule of Law’),Footnote 67 a prominent drafter of the Civil Code – Sun Xianzhong, a member of the NPC Constitution and Law Committee, and of the Chinese Academy of Social Sciences) – all but declares the Code to be what we would call a super statute, with an important caveat. Sun celebrates the Code as an ‘incorporation of the guiding principles of the CPC Central Committee for national governance, ensuring people's well-being, and advancing the development of a market economy …’Footnote 68 The Code is the ‘cornerstone of the rule of law’,Footnote 69 Sun tells us. Further, it expresses the ‘fundamental social norms’ of the country, ‘implementing’ the ‘basic guiding principles’ of the legal system, in order to ‘propel social progress, reform, and governance’ forward, and comprising ‘the most vital fundamental initiative,’ in comparison to any previous legal reform.Footnote 70 In particular, Sin focuses attention on basic rights:
The Civil Code highlights the protection of rights of the person, and comprehensively enhances the humanistic spirit of China's law [and legal system] on the basis of human dignity… Art. 2 of the Code places personal relations ahead of property relations, and not the other way around. … [W]ith the view to strengthening and implementing the principle of protecting the rights of the person, the Civil Code consistently seeks to boost the … rights of the person.Footnote 71
Following this litany comes the caveat: Sun forcefully denies that the Civil Code is or resembles a charter of rights. Bills of rights, he stresses, are merely ‘inspirational’ and ‘cannot bring [the People] any tangible benefits’.Footnote 72 He illustrates the point with reference to the French Declaration of the Rights of Man (1789) and the Universal Declaration of Human Rights (1948), examples that fatally subvert his own claims. The French Constitutional Council, in a famous 1971 ruling, ended a long-running controversy among scholars and politicians by incorporating the 1789 Declaration into the French Constitution;Footnote 73 and domestic courts around the world recognise the UN Declaration to be a constituent component of the International Bill of Rights, provisions of which they regularly enforce, including in Hong Kong.Footnote 74
A second group is willing to go further than Sun, arguing that the Civil Code performs ‘constitutive’ functions, including the ‘legitimation’ of private law.Footnote 75 The view cannot be reconciled with Marxist-Leninist conceptions of law, or with the traditional dogmatics that would distinguish ‘private’ from ‘public’ law. Instead, the Code officially endorses a novel counter-narrative, challenging academics to reconceptualise Chinese constitutionalism and the rule of law. These scholars openly consider the various ways in which the Constitution and the Code overlap, and debate the consequences of such synergies. For some, such as Qian,Footnote 76 this overlap is fully acknowledged, but it is for the legislator to harmonise the courts.
Those who embrace the Code's ‘constitutional’ features argue that, at a minimum, Article 1 of the Code implies the horizontal indirect effect of the PRC's Constitution.Footnote 77 Nonetheless, many within this group worry that, in China, the courts are too weak, and judges too timid, to bear the heavy burden of constitutionalisation.Footnote 78
Integrating the Civil Code and the Constitution
A third group considers the Civil Code to be a ‘supplement’ to its ‘parent’: the Constitution.Footnote 79 Miao and Zheng argue these points expressly, while cautioning against the direct enforcement of constitutional provisions by the courts. Courts are to ‘indirectly’ apply the Constitution, through ‘constitutionally-conforming’ interpretations of the Code (ie, broadly speaking, the German doctrine).Footnote 80 Han agrees, while seeing the Constitution as a positive constraint on judges, blocking excessively broad constructions of ‘private autonomy’, and grounding the substance and scope of the general clauses, whose purpose is to infuse the private law with the priorities of the Party and Chinese socialism.Footnote 81 Wang Liming, who plays a leading role in drafting the Civil Code, is also mindful of its constitutional dimension. In Wang's view, the Civil Code comprises a quasi-constitutional statute, while Article 1 authorises doctrines associated with the horizontal indirect effect of the Constitution. Judges are, indeed, under a duty to ‘concretise constitutional values’, through their adjudication of the Civil Code.Footnote 82 Wang, Shi, and others reference the European experience in support of their arguments,Footnote 83 and some have even cited to Lüth.Footnote 84
It is worth mentioning that the practical differences between (i) the ‘indirect effect’ approach to the relationship between the Constitution and the Civil Code, and (ii) Sun's conception of a more autonomous statute, are likely more theoretical than real, when considered in terms of litigation in the courts. In his China Law article, Sun revisits the Qi Yuling case,Footnote 85 ostensibly to demonstrate how a dispute considered to be a ‘hard case’ a decade earlier has been recast as a simple case under the new Code. After discussing the proven facts (that Qi's identity had been stolen by another student, who used it to gain entrance into a business school), Sun notes that Article 109 of the new Code directly, and on its own, resolves the dispute. Article 109, to recall, declares the dignity norm; the other ‘personality rights’ in the Code are derived from dignity, including the protection of one's name, as enumerated in Article 110. Sun asserts that, because the dignity norm is ‘full and absolute’, there would today be no need to enumerate the full panoply of personality rights in order to resolve a case such as Qi's. These comments are of obvious importance, indicating that the NPC intended to delegate interpretive powers to judges to fill normative gaps.
Scholars have also addressed several issues of great comparative interest, including gap-filling, the function of the general clauses, and balancing. As just noted, Sun treats the Civil Code as if it contained no gaps that could not be covered by more abstract norms such as dignity, or the general clauses. Those who consider the Civil Code to have operationalised a previously ‘dormant’ text – the Constitution – have argued that judges must enforce the Code while considering Constitutional norms, including when encountering gaps. The argument is both far-reaching and controversial.Footnote 86 The general clauses of the Chinese Code simply identify ‘public policy’ and ‘good morals’ as enforceable norms, but do not otherwise define or qualify them. In Europe – especially Germany and Italy – virtually identical general clauses in civil codes have served as ‘portals’ to allow the policy's ‘objective values’ to ‘flow in’ or ‘penetrate’ the Civil Code, especially values that anchor the nation's commitment to constitutional rights. In China, one finds scholars arguing along broadly similar lines,Footnote 87 in the context of the impossibility to apply the Constitution directly. These arguments unabashedly treat the enforcement of the Civil Code as an indirect form of CJR, demanding much more ‘creativity’ on the part of judges.Footnote 88 Finally, as noted, in Europe the process of constitutionalising the codes has enshrined balancing – today subsumed by the constitutional principle of proportionality – despite the fact that doing so has radically expanded the courts’ policy discretion. Balancing is required whenever the litigating parties raise arguments based on two rights, or when a right arguably conflicts with an entitlement provided by the Civil Code. Chinese scholars, too, have debating balancing,Footnote 89 invoking Lüth Footnote 90 (which they had begun, if less earnestly, a decade before the Civil Code was promulgated). Shi even advocates the adoption of multi-stage proportionality tests.Footnote 91 The arguments of this third group would require courts to go far beyond the more banal practice of merely noting that their decisions conform to the Constitution.
Controlling the Courts
While they may resemble norms of the Constitution of the PRC, the rights provisions found in the Civil Code are left undefined. By making them justiciable, the CPC delegated massive, implied interpretive authority to judges. How will the Party – whose tight control over the Chinese political regime, as ruling principles, is not in doubt – control their agents?
Interpretation in the Judiciary
The repudiation of the Qi Yuling decisions by the SPC (2008) squelched a broader movement in support of CJR, but it did not stop the courts from engaging in constitutional interpretation of statutes. Sprick situated these efforts along a continuum of rising intensity and significance.Footnote 92 Courts might take a minimalist approach, referencing constitutional values to give symbolic weight to rulings, but not necessarily to alter their content.Footnote 93 More assertively, a court might stipulate that the Constitution – conceived as a corpus of binding legal norms – informs and legitimises a ruling despite the prohibition of CJR. In a third approach, the court emphasises that the Constitution had decisively determined the meaning of the applicable law. It can therefore claim to have enforced (what are in fact) rights without thereby challenging the NPC's authority, as direct CJR would. Sprick argued that Party elites (and the SPC) tolerated these practices insofar as they were responses to legislative inaction, concluding that constitutional interpretation would decrease as more comprehensive statutes closed gaps.Footnote 94 In any case, neither the NPC nor the SPC moved to stop judges from proclaiming the constitutionality of their rulings. Meanwhile, some Chinese scholars condemned judicial appeals to the Constitution as per se illegitimate usurpations of the legislature.Footnote 95
It is also clear that Chinese judges are adept at harnessing the Constitution to preferred policy outcomes. In ongoing research, Du has sought to persuade his peers – and the judiciary – that (i) the courts meaningfully interpret the Constitution, and that (ii) they ought to do so in order to render more effective both legislation protections and constitutional rights.Footnote 96 Among a range of interpretive and remedial techniques (eg, issuing ‘conforming’ interpretations), Du finds that judges are adept at ‘reading in’ and ‘reading out’ statutory provisions to ensure their compatibility with the Constitution. Two examples will suffice. The Gu v Zhou case (2008) involved the support of a child (Ms Gu) who had been conceived in the course of an extra-marital relationship between Ms Zhou and Mr Huang some 12 years earlier.Footnote 97 Ms Gu sued Mr Zhou for child support, which Mr Zhou (who had long contested his parentage) had argued was barred under a statute of limitations provision. The presiding court held that children born out of wedlock enjoyed the same rights as those born to married parents, basing the move on Article 49 of the Constitution.Footnote 98 The court had unambiguously determined that the right to identity based on family relations (the Constitution) required ‘reading-out’ the statute of limitations (legislation). In Jiang v Liu (2015),Footnote 99 a truck driver who had suffered work-related injuries sued his employer for having neglected to provide a proper contract or insurance coverage, which deprived the driver of compensation. Indeed, the employer took pains to delist his company to escape liability. Article 2 of the Labour Law excluded labour relations between natural persons (covering agreements between corporations and representatives of labour), which normally would have led to the case's dismissal. The court, however, decided that, in maliciously deregistering the company, the employer had violated the driver's right to occupation. Thus, in the guise of strengthening workers’ safety, the court wrote into the statute protections offered by Article 42 of the Constitution.Footnote 100 If brought today, both of these cases would be litigated under the Civil Code.
The Supreme People's Court as a Control Mechanism
The CPC conferred on the SPC its authority to issue judicial interpretations in 1955, which it enhanced in the 1980s. Viewed comparatively, it is important to recognise that the SPC is not a constitutional court, but a quasi-legislative organ of governance that manages the judicial system in the name of the CPC and NPC. That point made, it is now fully accepted that SPC Interpretations produce legal norms that impact the entire judiciary,Footnote 101 at least with respect to resolving questions of how the law is to be applied in concrete cases that have arisen in the courts.Footnote 102 Concurrently, the Standing Committee of the NPC holds de jure powers to resolve disputes about the meaning of justiciable law, and to clarify how that law is to interpreted in new circumstances.Footnote 103 In practice, the respective competences of the Standing Committee and the SPC are virtually impossible to delineate, given the general legislative nature and scope of the SPC's pronouncements.Footnote 104 The SPC publishes its decisions in various forms.Footnote 105 Under the current system, three of these – Interpretations; Provisions; and Official Replies – directly impact the substantive content of legal norms.Footnote 106 Interpretation and Provisions comprise relatively abstract interpretations: Interpretations stipulate the textual meaning of legal provisions with a view to their application in the context of litigation; while Provisions contain supplementary rules purportedly to derive from an analysis of legislative intent. The Official Replies constitute the SPC's response to concrete questions that are referred by the lower courts, usually in the context of adjudication. Each of these pronouncements binds on the courts as a whole,Footnote 107 and judges are expected to treat them as sources of law in their rulings.Footnote 108
These modes of control exhibit important features of abstract lawmaking, insofar as they are detachable from the facts of concrete litigation, and result in authoritative determinations of the meaning of contested legal provisions.Footnote 109 Abstract lawmaking has an overtly ‘political’ complexion; its function is to enhance systemic coherence and uniformity in the absence of strong judicial review and an explicitly formulated stare decisis principle. Indeed, the SPC unabashedly uses its pronouncements to develop the law, to respond to changing circumstances, or even to promote social transformation.Footnote 110 The SPC seeks to maximise two interrelated objectives: its capacity (i) to manage the courts,Footnote 111 and (ii) to enhance its own capacity to control policy outcomes, including in the sphere of constitutional law.Footnote 112 Put somewhat differently, the SPC's makes law by filling legislative gaps, clarifying the scope of legislative provisions, and adjusting the meaning of legislative governance in diverse fields.Footnote 113
To date, the SPC has issued 127 judicial interpretations concerning the Civil Code (the most recent, as of 24 February 2022, interpreting aspects of the Code's General Provisions). Most of these are formally revisions of previous declarations, yet close examination reveals a great deal of substantive lawmaking within (what we have called) the Code's ‘constitutional dimensions’. In December 2020, the SPC issued the first batch of systematic Interpretations on the Civil Code's three major Books, including the Book of Marriage and Family. According to the SPC's own reading, the interpretation on the meaning of ‘maltreatment’ under Articles 1042, 1079, and 1091 of the Civil Code embraces the constitutional ‘spirit’ with regard to gender equality (Article 48, para 1 of the Constitution) and prohibition of domestic violence (Article 49, para 4 of the Constitution).Footnote 114 The SPC has also responded to the question of how lower courts should develop constitutional rights, given the inadequacy of existing laws on the books, and in the absence of direct CJR. Thus, in 2019, a law professor brought a civil lawsuit against a local safari park for using his likeness without his consent. The case, understood to be ‘China's first case on facial recognition’, attracted widespread public attention. Given the fundamental rights at stake, the case was selected as one of China's ‘Top 10 Constitutional Incidents of the Year’, catalysing still more heated scholarly debate concerning the Constitution's horizontal effect and the enforcement of the proportionality principle.Footnote 115 Following the appellant court's final judgment in the case (2021),Footnote 116 the SPC issued an Interpretation on issues concerning facial recognition,Footnote 117 which laid down detailed rules governing personality rights and their potential infringement, a month before the promulgation of the more comprehensive Personal Information Protection Law.
The SPC also manages the Guiding Cases System (GCS), in which it published approved, ‘representative’ judicial decisions in the SPC gazette. Under the GCS, which was formally established in 2010,Footnote 118 the SPC selects rulings deemed ‘important’, on the basis of recommendations from its internal agencies, lower courts, and civic society.Footnote 119 The Gazette presents Guiding Cases in the form of summaries highlighting key words, and major points of the court's reasoning, holdings, and the facts of the case. Compared with the Interpretations and other forms of pronouncement, the Guiding Cases have weaker binding force, as they are not recognised as a formal source of law or legal basis for a court's decisions.Footnote 120 Judges are nonetheless obliged to consult the Guiding Cases when presiding over litigation, if the present case is similar enough to a Guiding Case in its facts and applicable provisions.Footnote 121 Litigants may plead elements of Guiding Cases, and judges must explain how they have responded.Footnote 122
To date, the SPC has issued 31 batches of guiding cases, consisting of 178 judgments in civil, criminal, and administrative law, most of which are civil cases. The Guiding Case No 99 exemplifies how the SPC controls lower court decisions through reconstruction under the GCS.Footnote 123 The dispute was triggered by a historian's article that challenged the veracity of a well-known story of revolutionary heroes who chose to commit suicide rather than surrender in wartime. One important aspect of the dispute, as the lower courts affirmed in their original decisions,Footnote 124 is how to balance freedom of speech with conflicting rights (freedom of reputation) and interests (public interests and national sentiments). The SPC selects the case as a Guiding Case and only highlights the public dimension of the reputation of national heroes and martyrs, leaving out the issue of freedom of speech altogether.
Systematic, high quality research on the influence of the GCS on judicial decision-making on public policy does not exist,Footnote 125 but it appears that this impact is rising.Footnote 126 We expect that, as the adjudication of the new Civil Code increases, so will the SPC's use of the GCS to harmonise practices, as recently emphasised by one of its members.Footnote 127 Moreover, as Sun and Fu argue, the recent ‘quota reform’ tightens the control of high courts over lower courts, and the SPC over the judiciary as a whole, which may well lead to far more attention given by judges to the Guiding Cases, as effective guidelines of decision-making.Footnote 128
The National People's Congress and the Communist Party
The NPC exerts the legislature's formal control through two mechanisms: ex ante review of constitutionality by the Constitution and Law Committee, which takes place during the process of drafting bills; and ex post supervision of certain legal acts by the Legislative Affairs Commission of the Standing Committee of the NPC through the Recording and Review procedure, which is available once subordinate legislation has been promulgated.Footnote 129 As mentioned, China substantially developed ‘political’ constitutional reviewFootnote 130 following the 19th National Congress of the CPC. The suite of constitutional amendments adopted in 2018 recast the ‘Law Committee’ as the ‘Constitution and Law Committee’, which was given the new charge to ‘facilitate the implementation of the Constitution, provide constitutional interpretation, promote constitutional review, and enhance constitutional supervision,’ in addition to existing responsibilities to review pending bills.Footnote 131 Most of the Committee's 18 members possess legal backgrounds in academia or in practice; many have experience in giving legal advice to the public sectors, including a former vice president of the SPC; but none appears to be an expert in constitutional law. While scholars have assumed that the Committee would serve to build the status of the Constitution within all state organs, it has so far played only a marginal role in doing so within the NPC's legislative procedures.Footnote 132
The Recording and Review procedure has proved a more effective tool, if for supervising the legal order. As presently constituted, it requires state-level regulation and provincial statutes to be filed with the Standing Committee of the NPC for ‘recording’ after their promulgation.Footnote 133 The Legislative Affairs Commission (which is advised by leading legal scholars appointed to an ‘advisory board’) then ‘reviews’ these recorded acts on its own initiative, upon the request of certain state organs (including the SPC),Footnote 134 or upon an accepted proposal from an organisation or individuals.Footnote 135 If a constitutional issue is involved, the Commission may decide to conduct constitutional review with the Constitution and Law Committee.Footnote 136 The Commission and the Committee reviews the impugned legislation against provisions expressly enumerated in the Constitution, as well the ‘spirit’ of its principles.Footnote 137 Review criteria notably include a proportionality-like sequence of tests to ensure that: (i) the aim of the act under review is legitimate; (ii) the lawmaker has established a rational means-end nexus; (iii) the act restricts rights no more than is necessary to achieve the end; and (iv) the restriction infringes too much upon constitutional values as a whole (balancing).Footnote 138 The review bodies may also consider (i) whether a review of the act's legality has taken place before the application of constitutional standards, (ii) whether a constitutionality-based interpretation of the act would suffice to avoid a finding of unconstitutionality, and (iii) whether a determination of unconstitutionality would be too severe, given the evidence.Footnote 139 If the act under review is held to be unconstitutional, the review bodies are expected to require the maker to modify or repeal it, before the Standing Committee of the NPC made the formal repeal decision.Footnote 140 This mode of review is abstract in nature: under current Recording and Review arrangements, only legislative acts can be challenged before the Standing Committee of the NPC.Footnote 141 This latter restriction exposes the inadequacy of the procedure when it comes to protecting an individual's rights in cases already before the courts.Footnote 142
The Recording and Review procedure remains a work in progress. At present, review is accomplished through internal communications with little public disclosure, under no formal requirement for publishing decisions.Footnote 143 It was only in 2017 that the Legislative Affairs Commission released its first annual report. From these, one learns that more than 1000 acts are filed each year. In its 2021 report, the Commission details, for the first time, elements of its constitutional reasoning. Among other such entries, the Commission criticised an act that required paternity testing in the course of an investigation into the size of a family, on the grounds that the parent-child relationship is protected by fundamental rights of by the Constitution, in particular, human dignity, personality, and privacy, in addition to the values of family harmony and stability.Footnote 144 Liang Ying, the director of the Recording and Review Office of the Legislative Affairs Commission, predicts that ‘as the work of constitutional review under the Recording and Review progresses and deepens, constitutional interpretation will certainly [take its place] on the agenda, and constitutional implementation will be normalised’.Footnote 145 From a comparative perspective, this procedure is only a distant and imperfect analog to the ‘constitutional complaint’ in Germany, Europe, and Asia, or the ‘amparo’ in Spain and Latin America, although it petitions to a legislative body for action, among many structural differences.
We have saved the most potent set of controls for last. The CPC holds and jealously guards unrivaled authority to dictate the drafting, adoption, interpretation, and application of legislation, and the ultimate power to delineate any and all boundaries within which the courts might exercise some degree of ‘relative autonomy’ from ‘politics’.Footnote 146 The Party exerts control over the SPC, regularly determining the substance and timing of Interpretations and Guiding Cases.Footnote 147 Recent examples concerning the Civil Code include the SPC's Interpretations on torts for environmental damageFootnote 148 (the Civil Code, chapter VII ‘Liability for Environmental Pollution and Ecological Damage’, Book Seven on ‘Tort Liability’), and the Guiding Cases on biodiversity conservation,Footnote 149 both of which seek to further implement the CPC's policy of ‘Ecological Civilisation Construction’.Footnote 150 Party officials also preside over the NPC legislative procedure, which serves to verify the constitutionality of legislative bills, as well as the Recording and Review procedure, which serves to ensure other legislative bodies’ compliance with the policy decisions of the CPC's Central Committee.Footnote 151 Although it is rarely possible (or worthwhile) to analyse separately the decisions of the Party, the SPC, and the NPC,Footnote 152 the Party maintains its own specialised committees and procedural controls. The CPC's Political and Legal Affairs CommitteeFootnote 153 is tasked with ensuring that the Party's pronouncements and policy instruments are ‘implemented correctly and uniformly’,Footnote 154 including by the SPC.Footnote 155 It does so primarily through the Case Coordination and Case Inspection procedure already mentioned, which it uses selectively,Footnote 156 as a function of a legal dispute's relative political sensitivity.Footnote 157 Finally, Party officials comprise a normal presence in the courts. Tellingly, they are fully expected to ‘instruct the responsible judge on how to handle politically sensitive or influential cases’Footnote 158 – now understood as ‘those affecting social stability, the general public, and the image of the state’Footnote 159 – under threat of punishment, including dismissal and criminal prosecution.
Conclusion
China's new Civil Code has revived certain, now classic questions concerning the scope of judicial power in the PRC. It is clear that the norms, structure, and justiciability of the new Civil Code, in synergy with other pieces of legislation, signal a softening of the Party's once categorical opposition to any form of rights-base judicial review. Judges are actively engaged in statutory interpretation with reference to provisions of the Constitution, and a growing group of scholars encourage the courts to institutionalise these practices even further. It is also clear that there exists opposition to a larger process of ‘constitutionalisation’, which one has observed abroad.
As we have emphasised, outside China, the constitutionalisation process has been catalysed and sustained by (i) constitutional courts anxious to assert their authority in newly democratised systems, and by (ii) inter-jurisdictional rivalry, between constitutional courts and other courts in the legal system. The Chinese case is singular, three inter-related points standing out in this regard. First, China's purported ‘turn’ to justiciable rights and the ‘rule of law’ did not lead them to create a constitutional court, or any other robust commitment device. Second, from the perspective of the third group of scholars discussed above, China is attempting to accomplish a unique feat. The legislature has expending enormous resources to build a quasi-constitutional system of rights protection from within the private law. Outside China, the trick is to enable the constitution's penetration into the Civil Code, through the latter's general clauses, while meaningfully preserving the private law's relative autonomy. Third, the general clauses in the Chinese Civil Code will enable the primacy of the CPC's own aims and priorities, in the guise of ‘public policy’ and ‘good morals’. Thus, the new Civil Code presents lawyers, judges, scholars, and foreign observers with intriguing possibilities, but the ruling Party's control over the Code's development remains virtually total.
From the point of view of a simple principal-agent framework of analysis, it is clear that Chinese rulers have decided to delegate broad powers of interpretation and enforcement onto the courts, while retaining the means to quash any unwanted judicial ruling. The logic of such a system is to gain the advantages of delegation – to encourage policy innovation, to enhance the system's capacity to respond to social inputs, and to furnish a scapegoat to blame for policy that proves unpopular – while limiting costs, theoretically to zero. In China, the principals are well-positioned to develop its control of courts further.
More broadly, the Civil Code illustrated just how firmly the Party has embraced the ‘super statute’ as a quasi-constitutional instrument of governance. The PRC had good reasons to turn to ‘the rule of law’, while seeking to enhance ‘judicial accountability’, not least, in order to consolidate and rationalise its own capacities to manage a vast and diverse polity. At the very least, a greater reliance on comprehensive statutes and litigation can improve information on how the Party's goals are implemented, and how lower-level officials (including judges) govern. The marginal costs of enhancing a decentralised system of monitoring performance is far lower than building a new system of direct supervision from Beijing. In the case of the Civil Code, Sun Mengjiao found that judges typically rely on ‘socialist core values’ as part of the reasoning and basis underlying public order and good morals, thus connecting the CPC's policy priorities to day-to-day judging.Footnote 160 It bears repeating that the new Civil Code and other reforms can and will be used in illiberal ways, as a means of suppressing individual rights and supporting the party state.Footnote 161
How will the tensions and ambiguities discussed in this article be resolved? In our view, we are at an important moment in the development of the Chinese legal system, but one likely to produce incremental change. Of course, even small incremental changes can register large cumulative effects downstream. We think a first scenario, in which nothing of much importance happens and the legal system continues to operate much as it did prior to the entry of force of the Civil Code, is unlikely. Judges have been given a great deal of work to do, and some will assume their assigned tasks aggressively. Yet, it is worth recalling that a past instance of major legislative reform – of Criminal Procedure (1979, and revised in 1996 and 2012) – utterly failed in its ambitions.Footnote 162 Much more likely is a second scenario: the Civil Code accelerates processes already underway. Judges will increasingly rely on the use of techniques of interpretation to ensure conformity of the Code with the Constitution; the CPC will refine mechanisms of control to discipline the process when necessary; and scholarly debate on the ‘constitutionalisation’ of private law – indeed of the entire legal order – and of indirect CJR will intensify. A third scenario – that the process of implementing the Code will transform the Chinese legal system, and introduce a more robust rights-protecting constitutionalism – is also an unlikely outcome. As we have emphasised, Chinese political authorities have thus far refused to relinquish their tight control of the courts, while supporting more ‘judicial independence’ in speeches and legislation. This last point made, China has moved (however tentatively) in the direction of other systems that have constitutionalised the private law, profoundly changing interpretive rhetoric and technique.
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