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Compilation of civil code should balance public concerns with privacy rights
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EDITOR’S note: Min Wei is an expert on civil law and a partner at the law firm King & Wood Mallesons. Shanghai Daily reporter Li Xinran held an interview with him recently, discussing the compilation of a future civil code and its influence on our private life as well as the economy.
Q: When our Party set a blueprint for rule of law during the Fourth Plenary Session of the 18th CPC Central Committee held on October 20-23 in Beijing, it also put the compilation of a civil code on the agenda. What is the significance for the process of legalization of our country?
A: The core value of rule of law is there are laws to abide by. When there are laws to go by, laws can be strictly enforced. A sound legal system and codification are premises to the rule of law.
Q: Starting from the civil code, will our country develop its Six Codes system?
A: Six Codes system refers to a complete collection of statutory laws that takes the Constitution as the fundamental law and civil code as the core of the system. It compiles codes for major legal sectors.
The system is widely seen in civil law countries. But the latest trend of legal development worldwide has blurred the boundaries of civil law and common law systems. Traditional common law countries like Great Britain and the US have compiled large quantities of statutory laws, while traditional civil law countries like Germany and Japan also set up their guiding case system via publishing prior court decisions.
Hence in my opinion even if our civil code is promulgated one day, our country may not establish a strict Six Codes system, but follow the existing models to rely mainly on statutory laws and supplemented by guiding cases.
Despite China being a civil law country, the Supreme People’s Court has constantly released guiding cases in recent years with an attempt to build our own guiding case system.
Q: How will the future civil code protect citizen’s lawful property and the socialist market economy?
A: Article 75 of General Principles of the Civil Law of the P.R. China says that a citizen’s lawful property shall be protected by law, and no organization or individual may appropriate, encroach upon, destroy or illegally seal up, distrain, freeze or confiscate it.
Article 4 of Real Right Law of P.R. China says that the real right of the state, collective, individual or any other right holder shall be protected by law, and may not be damaged by any entity or individual. Protecting citizens’ lawful property, which has been established by general principles of civil law and real right law as the principle of equal protection, will be embodied in the civil code.
Protecting citizens’ lawful rights in the civil code is the reflection of the principle “all people are equal before the law” in our Constitution. This offers legal protection to inspire us to build wealth, real estate and perseverance and demonstrates maximum protection to people’s livelihood.
Q: What will our legislators do to balance the protection of citizens’ private lives and intervention to individual’s livelihood caused by state management?
A: From the perspective of state management, our government will inevitably intervene in citizens’ private lives.
From the perspective of individuals, we have more pursuits for individual freedom and self-development. The contradiction between the two is inevitable.
The balance is rule of law.
State intervention in personal life shall be within the framework of the provisions in the law.
On the contrary, the protection of individual lives and privacy shall follow the law. This will not only prevent abuse of power of government organs but can also avoid the abuse of rights of individuals which may lead to group interests being hindered.
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