Breaching the Taboo? Constitutional Dimensions of China's New Civil Code

Abstract

Chinese political and legal elites have celebrated the new Civil Code (January 1, 2021) as the most important statute in the nation’s history, and the ‘cornerstone’ of the turn toward ‘rule of law’ and ‘good governance’. The Code expressly binds all natural and legal persons in China, as well as public officials, and is fully judicial enforceable. The statute enshrines the rights to dignity, equality, freedom and personal liberty, property, and privacy, among others, and codifies duties to protect the environment and to evolve effective means to combat sexual harassment. Echoing the German Code, the statute 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. While constituting an act of massive delegation to the courts, judges remain formally prohibited from directly enforcing the PRC’s Constitution. The paper explores the relationship between the Code and Constitution, through a comparative analysis of: (i) the wider process of the ‘constitutionalisation’ around the globe; (ii) the scholarly discourse on the ‘horizontal effect’ of rights and the prohibition of constitutional judicial review in China; (iii) the normative structure of the Code itself; and (iv) the development of ‘political’ control mechanisms, to be deployed by the Communist Party of China and the highest organs of the state to constrain how judges use their interpretive powers.