Civil Code:A Good Guardian of People’s Livelihood

By LIU HUADONG

CIVIL law， as the basis for civil adjudication， guarantees citizens civil rights， and plays a key role in maintaining market norms.

On December 23， 2019， the draft civil code of 1，260 articles， consisting of general provisions and six sections on property， contracts， personality rights， marriage and family， inheritance， and tort liability， was submitted to the Standing Committee of the National Peoples Congress （NPC）， Chinas top legislature. The compilation of the civil code went through the landmark stages of proposition at the fourth plenary session of the 18th CPC Central Committee in October 2014， adoption of the General Provisions of the Civil Law in 2017， and then the final debut of the complete draft civil code.

Closely related to peoples daily life， the civil code protects a persons civil rights from the cradle to the grave. Since its proposition， the compilation of the civil code has become the magnet for sustaining public attention. Within only the month of November 2019， 267，000 opinions had been collected regarding the draft of the provisions on marriage and family. On December 28， 2019 the NPC began to solicit public opinions from its website on the draft civil code. Within five days， nearly 30，000 opinions had been collected. The draft civil code will be submitted to the third session of the 13th National Peoples Congress for deliberation.

Ensuring Vulnerable GroupsRight of Residence

Topics of heated discussions often serve as the barometer of an era. In recent years， housing has been a hot topic in Chinese society. Responding to that， the right of residence is proposed in the draft civil code， with the stipulation that in order to meet their needs of living， a person entitled with the right of residence enjoys the usufructary rights of occupation and use of anothers property as agreed in the contract.

In deliberation， it was proposed that the vulnerable groups right of residence should be given adequate protection in defining the right of residence. It was also proposed that in the section of property， the concept of legal right of residence should be specified， so as to provide a legal guarantee to the residence right of parents as legal guardians to the dwelling of their minor children， the residence right of minor children to the dwelling of their parents， and that of the divorcee to the dwelling of his or her ex during a certain period.

“While defining the theoretical right of residence， the draft on property does not give special consideration to the residence right of vulnerable groups like the elderly， children， or spouses， as their rights usually cant be ensured via contracts. For that， the legal right of residence should be established， to provide vulnerable groups the minimum residence guarantee，” said Tian Hongqi， member of the NPC Standing Commit- tee. She believes that the legal right of residence would be conducive to the harmonious family relationship and sound social ethos thanks to its function as an institutional guarantee.

In addition， it was also proposed to specify， in the section of marriage and family， that the only dwelling that a couple lives in but belongs to one spouse， should not be at the discretion of the legal holder after a divorce.

“Matrimonial domicile is the important venue for a couple to fulfill their legal obligations， and also vital for the identification of such acts as litigation， inheritance and abandonment； in rural areas， its also related to land rights and interests as well as the distribution of homestead. To maintain a stable and harmonious family life， its necessary to ensure that a couple has the common right to live in their only matrimonial property，” said Deng Li， member of the NPC Standing Committee. As Chinas social security level is still pretty low， she further explained， to protect the rights of the vulnerable side in a marriage， special restriction should be imposed on the disposal of the matrimonial domicile， so as to avoid the situation that one party becomes homeless after a divorce once their only dwelling is disposed by the legal holder.

Judicial Protection of Personal Information

In the information era， it seems very hard to protect personal privacy. However， as peoples legal awareness is now increasing， it has become a unanimous demand to protect personal information. For many Chinese， the memory of an Internet giants chairman being ferociously condemned by netizens for his controversial remark of “trading privacy for convenience” is still fresh in their minds.

As more and more Apps begin to clarify that information collection is not a default setting， legislation also keeps up. The section of personality rights in the draft civil code stipulates that any entity that collects and deals with personal information shall not excessively exploit information and should follow the principle of legitimacy， propriety， and necessity.

As for the issue of excessive collection of personal information， experts of the NPC Standing Committee suggest further stipulation of judicial protection in the civil code. Some proposed that in the section of tort liability， it should be stipulated that in case of any illegal act infringing upon the personal information of a large number of citizens， an authorized agency or organization can file public interest litigation in a peoples court in accordance with the provisions of the civil procedure law and other laws.

“Infringing upon the safety of personal information is an illegal act damaging public interest，” said Vice Chairman of the NPC Standing Committee Cao Jianming. The leaking of personal information is becoming common in many sectors nowadays， including the real estate， education， and medical care. It has almost become the norm for many Apps and websites to excessively collect personal information of citizens. All these infringement acts have disturbed peoples normal daily life and social order.

“In many cases， due to the wide distribution of victims， high cost of safeguarding rights and interests， and low cost of law breaking， the momentum of privacy infringements has not been curbed effectively. In some places， local consumer associations and procuratorial organs have made laudable explorations to protect the information safety of citizens. So we suggest that related articles be added in the draft civil code to strengthen judicial protection of citizens personal information，” said Cao Jianming.

Minor Childrens Opinion Matters

In recent years， the divorce rate has kept climbing. In the third quarter of 2019， 7.131 million couples registered for marriage， while 3.104 million couples chose to file for divorce in China.

With the increasing divorce rate， property division and child-rearing have become salient issues. According to the draft civil codes section on marriage and family， in principle， children below the age of two shall be in the guardianship of their mother after divorce. As for children older than two， when the divorced parents cannot reach a consensus， the peoples court shall give a verdict to the benefit of minor children.

In accordance with Chinas existing Law on the Protection of Minors， when a divorce case involves the issue of minor children support， the opinion of minor children who are able to express their intentions shall be taken into account by the peoples court. Therefore， in the deliberation of the draft civil code， experts proposed that minor childrens opinion should be respected as regards the issue of child support. A member of the NPCs Environmental Protection and Resources Conservation Committee， Tan Lin， suggested that if the minor child is more than eight years old and the divorced parents cannot reach a consensus on child-upbringing， the childs opinion should be taken into consideration.

Why is the threshold set at eight years old？ “The General Provisions of the Civil Law has lowered the age threshold for a person with limited competence to eight years old from 10. In practice， courts also take it as a norm to deal with cases of this kind that opinion of a minor child more than eight years old shall be considered，” said Tan.