From Primary Civil Law to Basic Law: On the Status of the Civil Code of the People’s Republic of China

Abstract

Existing theories in China mostly classify the Civil Code of the People’s Republic of China (hereinafter the Civil Code) within the category of primary civil laws. Although the concept of a primary civil law carries distinct Chinese characteristics, it suffers from ambiguous connotations and unclear legal effects. Positioning the Civil Code merely as a primary civil law would unduly restrict its scope of application, hinder the coordination between the Civil Code and other laws, and be detrimental to safeguarding the stability and authority of the Civil Code. The Civil Code demonstrates its basic status within the entire legal system in terms of its regulatory scope, underlying values, legal functions, legislative techniques, and legislative process. President XI Jinping’s assertion that the Civil Code is a “basic law that consolidates governance foundations, meets public expectations, and brings long-term benefits” has both developed the theory of the legal system and deepened the understanding of the Civil Code’s status, possessing significant theoretical originality and practical guiding significance. The elevation of its status from a primary civil law to a basic law aligns with the inherent attributes of the Civil Code, conforms to the intent of the Constitution of the People’s Republic of China, and meets social needs. As a basic law, the Civil Code transcends the limitations associated with being merely a primary civil law and assumes a quasi-constitutional character within the socialist system of laws with Chinese characteristics. It exerts binding force on legislation, judicature, and administration, enjoys precedence in application, and should serve as a basis for constitutionality review.

Keywords

the Civil Code / primary civil law / basic law / the Constitution

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Higher Education Press