Chinese tort law: tradition, transplants and some difficulties

Comparative tort law : global perspectives, 2021

Much of Chinese civil law is a product of Western legal transplants. However, when dealing with a country as old and sophisticated as China, one can easily miss the whole picture by focusing only on the written statutes. Appearances do not tell much. Chinese Civil Code was enacted on May 28th, 2020. This is the first Civil Code in the history of Communist China. This essay takes a comparative and historical look at the codified Chinese tort law, shows its promises and perils of its legal transplants and, most importantly, identifies some persistent problems. Some of these problems come from contradictions among doctrines borrowed from different legal systems, others from clash between legal transplants and the pre-existing social norms that are based on different philosophical ideas, others might be due to the tension between doctrinal innovations and the existing structures. Specifically, this essay examines the doctrinal innovation of having an independent personality rights law operating outside of tort law, the doctrinal uncertainty in determining the scope of protected rights and a rule of liability without fault that resonates with Chinese traditional moral philosophy.