Comparative Analysis of the Chinese Legal System and European Civil Law Traditions

  • 03 Pages
  • Published On: 15-12-2023

Critically compare and distinguish the constitutional framework in the French and English legal systems.

Critically evaluate whether the Chinese legal system can be regarded as similar, and different, to the civil law tradition.

Chinese legal system being based on a written civil code system, there are certain similarities between the Chinese legal system and the similar civil law traditions in France, Germany and Italy. There are also some differences between Chinese legal system and the European civil law traditions, which are predominantly due to the fact that laws in China are made by a single party governing the country without representation of the citizens for law-making. These similarities and differences are explained in this essay.

The two predominant similarities between Chinese legal system and the civil law traditions are that both have written civil code system and that public interest is the basis for law making. However, the history of the Chinese legal system shows that till 1977, there was no continuity of the civil law tradition in China because while codification of laws did start in the 1920s, the system was halted in 1935. Nevertheless, legislative reforms based on civil law traditions did happen in the period between early 1920 to 1935, with the Chinese legal system adopting a number of aspects of the European civil law systems like codification of laws, including Civil Code, Civil Procedure Code, Criminal Code and Criminal Procedure Code. Similar to the German Code, the Chinese Civil Code was also divided into a general part and four special parts of obligations, property rights, family and succession. Post 1977, after a long break in codification activity in China, the process of codification was resumed with the enactment of Criminal Code and the Criminal Procedure Code, and a number of laws on subjects like marriage, succession, contracts, and patents to name a few. The General Provisions of Civil Law of 1986 is influenced by the German civil law traditions. David Jones has noted that China in particular was open to adoption of civil law traditions because of the early development of scholarly work on jurisprudence, which made it easier to develop civil law in China with a focus on codification of the law.


The Chinese legal system is similar to the European civil systems in that both are influenced heavily by scholarship and treatises of the leading legal scholars of the respective countries. In China, an important aspect that ties the civil law system to Europe is that the scholars in China were influenced by the events and jurisprudence developed in European countries; the scholarship during the Qing Dynasty (1902–1911) is more reflective of the European influence on Chinese scholarship. It is also during the Qing Dynasty when transplantation of civil law principles was done in China although this was not seen to be significant in nature. Nevertheless, it is noteworthy that the Qing Dynasty established the falü bianzuanguan or Law Codification Commission in 1902 under the principle that there was a need to reform

  1. K Lieberthal, Governing China: From Revolution Through Reform (W.W. Horton 1995) 150.
  2. Albert H.Y. Chen, An Introduction to the Legal System of the People’s Republic of China (Hong Kong: LexisNexis 2004)
  3. Ibid.
  4. Ibid.
  5. David M Jones, Basic principles of civil law in China (Routledge 2019).
  6. Ibid.
  7. Ibid.
  8. Chen Lei, ‘The historical development of the Civil Law tradition in China: a private law perspective’ (2010) 78 (1-2) Tijdschrift voor Rechtsgeschiedenis/Revue d'Histoire du Droit/The Legal History Review 159.
  9. Ibid.
  10. law in China. Prior to the promulgation of the Civil Code of the Republic of China in 1929, the traditional Chinese civil law was in the form of customary law. The Civil Code was modelled upon the German Civil Code and the Swiss Law of Obligations of 1911. Thus, in this early period, there was a definite influence of the civil law countries of Europe in the making of the Chinese civil law.

    The civil law system in China is divided into and internal and external system. The internal system relates to values such as protection of the disadvantaged persons, protection of reliance interests, and private autonomy. These values guide the external system that includes norms, concepts and institutions. The civil code in China is based on these two internal and external systems. As such, while many of the aspects in the external system may have similarities to the European civil law systems, the values that are part of the internal system of China’s civil law system would be in great part, peculiar to China. It may also be mentioned that China was also influenced by the Soviet theory of economic law which provoked debate in China on the functions of civil and economic law and this also led to the denomination of the contract law as “Economic Law” and including the 1981 Economic Contract Law and 1985 Law on Economic Contracts Involving Foreign Interest. This is relevant because it shows that the internal values of the Chinese civil law were impacted by socialist values and ideas and this may have also led to some crucial differences between Chinese civil law and the European civil law systems. At the same time, the General Principles of the Civil Law (GPCL) of 1986 adopted many legal concepts and institutions of Roman Law and continental law, such as legal person, juristic act, limitation, and civil liability.

    The principal difference between Chinese civil law system and the European civil law system is that the former does not have citizen participation in the law making process as laws are made by the single party government and there are no elections for lawmakers by the citizens. This has had the impact on how civil law in China protects or does not protect individual rights and freedoms in contrast with the European civil law systems that emphasise on individual rights and freedoms. In that sense, Chinese civil law is different from the European civil law systems. Indeed, one commentator has noted that the Chinese law is a socialist civil law system with “Chinese characteristics”. This statement reflects on the inherent Chinese nature of the civil law system in China so that even though the Chinese legal system has adopted many principles and ideas from the European, particularly German civil law systems, it has also retained or developed some principles that are unique to China or rejected some principles that are part of the European civil law systems.

    An example of how China has rejected some principles of European civil law can be seen in the treatment of administrative law in China. In countries like France, administrative law is a

  11. Ibid.
  12. Zhang Lihong, ‘The latest developments in the codification of Chinese civil Law’ (2008) 83 Tul. L. Rev. 999, 999.
  13. Ibid.
  14. Zhu Yan, ‘Transformation of the Social Foundation and Construction of a Dual System of Civil Law [J]’ (2010) Social Sciences in China 6.
  15. Ibid.
  16. Ibid.
  17. Ibid.
  18. Zhang Lihong, ‘The latest developments in the codification of Chinese civil Law’ (2008) 83 Tul. L. Rev. 999, 1001.
  19. Ibid, 1002.
  20. Hermes Pazzaglini, ‘Chinese Law Past and Present and Recent Legislative Developments’ (2007) 8 Bus. L. Int'l 239, 244.
  21. very important component of their civil law. In France, administrative law forms a key part of the legal system; in China however, there are some developments in this field but the robust system that is seen in France is missing in China despite a system of remedies against abuse of power in the Administrative Procedure Law 1989 and the Administrative Review Law 1999. In China, there are limits to how far the courts can hear matters against the executive.

    Another area of connect between the Chinese legal system and European civil law countries can be seen with respect to the constitutional law. In this, both systems show some similarities and differences. Both the Chinese and the French legal systems are premised on the supremacy of the constitutional law to be the supreme law of the land. However, in the French legal system, there is representation of the people in the amending of the constitutional law with many important questions even requiring referendum for

    amendment. China by contrast sees a very centralised role of the executive government and very little or no participation of the citizenry in the context of constitutional change. Another difference is that in the European legal systems like Germany and France, which have written constitutions, there are powers as well as limits prescribed to the executive, legislative and judicial authorities but in the Chinese legal system, the emphasis is on powers of the single party (Communist Party of China) with little or no emphasis on limits on the powers. Another important difference between Chinese civil law system and the European civil law system is that the principle of separation of powers is applied in a way that sees centralisation of powers in the Communist Party in China. In civil law countries of Europe, there is separation of powers with powers being divided between the legislature, executive and judiciary and each organ having independent sphere of powers and authority. In China, while this aspect of separation of powers is adopted by separating the administrative, legislative and judicial authorities, the principle of sphere of powers and authority is not followed with respect to the judiciary. The Chinese legal system provides overweening powers to the CCP and the judiciary’s powers are limited with respect to review of executive decisions and actions. The checks and balances of powers that is seen in the European civil law systems, both Germany and France, are missing in the Chinese legal system.

    To conclude, Chinese civil law is influenced by and has adopted many of the civil law aspects from European countries like Germany, Italy, and Switzerland. At the same time, Chinese civil law can be differentiated from these countries’ legal systems because of the internal values of the Chinese civil law and the differences in polity. The socialist values adopted by China influences some differences in the system. The political set up with CCP at the apex also leads to some changes in how administrative and constitutional law are applied in China.

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  22. Susan Rose-Ackerman and Peter L. Lindseth, ‘Comparative administrative law: An introduction’ in Susan Rose-Ackerman and Peter L. Lindseth (eds.), Comparative administrative law (Edward Elgar Publishing 2010) 14.
  23. Hermes Pazzaglini, ‘Chinese Law Past and Present and Recent Legislative Developments’ (2007) 8 Bus. L. Int'l 239
  24. Martin A Rogoff, ‘Fifty years of constitutional evolution in France: The 2008 amendments and beyond’ (2011) Jus Politicum 1.
  25. Larry Catá Backer, ‘A Constitutional Court for China Within the Chinese Communist Party: Scientific Development and a Reconsideration of the Institutional Role of the CCP’ (2009) 43 Suffolk UL Rev. 593.
  26. Mo Zhan ‘The Socialist Legal System With Chinese Characteristics: China's Discourse For The Rule Of Law And A Bitter Experience’ (2010) 24 Temple Int'l & Comp. L.J 1.
  27. Maurice John Crawley Vile, Constitutionalism and the Separation of Powers (Liberty Fund 2012).
  28. Mo Zhan ‘The Socialist Legal System With Chinese Characteristics: China's Discourse For The Rule Of Law And A Bitter Experience’ (2010) 24 Temple Int'l & Comp. L.J 1.
  29. Ibid.
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