The Modernization of Tort Law in China: Models and Perspectives

Chinese tort system, whose origins can be traced back to the 3rd century B.C., developed under unique historical and social circumstances. Even in the first half of last century, when rules and procedures based on Western sophisticated doctrines, as adapted by the Japanese, were largely imported into China, the traditional features kept on playing a major role in litigation. After the adoption, in 1986, of the “General Principles of the Civil Law”, which incorporate comprehensive rules, concerning specific categories of torts, the amount of private actions increased only in some fields, but in the important areas of product liability and road accidents the burden of settling disputes has been carried chiefly by administrative agencies. In the course of shifting from a state-managed economy to more marketized institutional settings, the beginning idea is that tort law system ought to be refurbished and modulated in order to become a factor in governing relations between individuals, and between private actors and the state. During the last decade the controversial aspects of tort law reform have been deeply examined by the Legislative Affairs Commission of the National People’s Congress, the body in charge of the civil codification process, that started in 1998 and is currently following a step-by-step roadmap, in which single parts of the entire legislation are revised and ratified individually. The debate on the 2002 “Draft on Tort Liability Law” is still alive, and the discussion among the members of the Legislative Affairs Commission and European and American tort law experts reveals a preference for the German model, but also an inclination of the Chinese legislative office to think about common law principles. The proposed rules, contained in 61 articles, address in a quite detailed way many subjects and codify innovative approaches, such as the right of compensation for emotional loss and the disgorgement principle for wrongs involving reputation and the rights of publicity or privacy.