Max Planck Society

Max Planck Institute for Comparative and International Private Law

Media Information
Online version Handwörterbuch des Europäischen Privatrechts


Research on Chinese Law

Since the era of reform and opening began at the start of the 1980s, China has found itself on a path of transformation, shifting from a socialist economy to one oriented on free markets. Accompanying this development is the gradual build-up of legal structures supporting commercial interaction. A central element of the legal reform remains the codification of civil law into a Chinese Civil Code. Chinese leaders have shown keen interest in drawing on global experiences during the process of modernising its economy. The Max Planck Institute for Comparative and International Private Law provides support in this regard. In 2011 both China and Taiwan enacted legislation in the field of private international law (PIL), an area of law which has in recent years also been the subject of considerable attention inside the EU. As such, the China Unit is planning a symposium to be held in 2013 which will bring together leading researchers from these jurisdictions with the goal of promoting a deeper appreciation of the various approaches currently adopted in the field of PIL.

History

The China Unit at the Max Planck Institute for Comparative and International Private Law draws upon a long and rich tradition. As early as 1934, at the Institute’s predecessor, the Kaiser Wilhelm Society, Karl Bünger served as the first Fellow responsible for China. His efforts as an Institute Fellow took him to Shanghai in 1941. Bünger’s work was dedicated above all to the civil and commercial laws enacted in the Republic of China.

His successor, Frank Münzel, assumed the position of Fellow responsible for China in 1969, and was witness to a unique transformative process undertaken in the Chinese legal system. At that time, the People’s Republic of China was not open to foreigners, and Münzel travelled to Harvard and Berkeley in the USA as well as to Hong Kong and Kyoto to gain an overview of the state of Chinese legal research and the available materials. In 1974, both Konrad Zweigert, a Director of the Institute at the time, and Münzel took part in the Max Planck Society’s first delegation to China to establish contacts there. The centrepiece of Münzel’s academic work was the study and critical analysis of the many profound legal changes that occurred in China following the death of Mao in 1976.

The current Fellow responsible for China at the Max Planck Institute for Comparative and International Private Law, Knut B. Pißler, continues in this tradition. His research work addresses Chinese civil and procedural law as well as corporate law and financial law. Special focus is being placed on contract law and the law of non-profit organisations.

The Development of Chinese Law

The history of legislation in China is marked by a reception of foreign law which can be documented back to the Tang Dynasty (618 to 907). Yet it was only at the end of the Qing Dynasty (1644 to 1911) that efforts arose to fashion a modern civil code in the mould of the then-dominant industrial nations. Ultimately, this was accomplished with the enactment of the Civil Code of the Republic of China, occurring from 1929 to 1931. This law - revised in part - remains valid in Taiwan, the island to which the government of the Republic of China withdrew after the triumph of the communists.

 

The People’s Republic of China ranks among those countries where a market-oriented economy is emerging from the planned economy of a socialist system.  This development is being accompanied by the gradual build-up of legal structures supporting commercial interaction.  Chinese civil law is presently made up of various laws that collectively embrace the regulatory scope of the German civil code (Bürgerliches Gesetzbuch, or BGB).  With the contract law enactments of 1999, China modernised their law of obligations.  After lengthy discussions shaped above all by ideology, the National People's Congress in 2007 passed the property law. In 2009 tort law was codified and 2010 witnessed the enactment of an amended private international law (PIL) regime on both the mainland as well as Taiwan (downloads of provisional German translations of the private international law codes are available below).

 

A comprehensive civil code, which will contain laws previously adopted in the People's Republic of China as well as a prefacing "General Part", is currently being devised by the legislature.

 

In the field of civil procedure, after a revision of the Civil Procedure Law in 2007, the Chinese legislature dedicated its efforts to alternative dispute resolution and promulgated a mediation law which entered into force at the beginning of 2011 (a download of a provisional German translation of this law is also available below).  

 

Further Information

Law of Nonprofit Organisations

A further research emphasis being pursued by Knut Benjamin Pißler since 2005 is the Chinese law of nonprofit organisations, an area of law currently being revised by the Chinese legislature. Pißler first addressed the law of nonprofit organisations in China at an April 2005 event hosted by the Bucerius Law School's Institute for Foundation Law and the Law of Non-Profit Organizations; subsequently he and Thomas von Hippel engaged in a comprehensive study on the outlook for nonprofit organisations in China. Pißler and von Hippel's efforts led them to being invited by the Chinese legislature to serve as advisors at a November 2005 symposium in Peking on the further reform of foundation law in China.

 

The first research findings on foundation law from Pißler and von Hippel were published in January 2006 in Volume I of the Rabel Journal of Comparative and International Private Law. A further study incorporating practical findings based on an analysis of foundation law statutes in China as well as the published annual reports from Chinese foundations appeared as a country report in the collection "Handbuch des internationalen Stiftungsrechts" (edited by Dr. Andreas Richter and Thomas Wachter). An English language publication on Chinese nonprofit organisation law will be released in 2010.  

 

Since 2008 Pißler and von Hippel as well as Katja Levy have been working on a Robert Bosch Stiftung funded project titled "Philanthropie in der Volksrepublik China". Philanthropy, literally "love of mankind" and here the support of charitable aims by private individuals, is a relatively new but significantly growing phenomenon in the People's Republic of China. Subsequent to the long-standing monopoly claimed by the Chinese government in regards to the common good, the Chinese legislature has, in the last 10 years, undertaken considerable efforts to create a new civil law and tax law framework fostering philanthropy. The project is intended to promote greater awareness of existing interests and need for individuals who would like to act philanthropically in China and also to outline the framework which currently exists in support of such efforts.