중국 민법 제정의 동향과 논쟁점

Abstract

Since establishment of People's Republic of China (PRC) in 1949, there have been several attempts to make a unified civil code and as results some official drafts were made public. However the project has not put an end to the legislation yet. There were a number of complicated reasons related to politicalㆍculturalㆍeconomic reality. Meanwhile PRC has enacted many individual special statutes on civil law matters to meet the actual need. Especially after adoption of ‘the reform and door-open policy’ by the Third Plenary Session of the Eleventh Central Committee, Communist Party of China (CPC) in 1978, the importance of law for governing economic development, improving international relationship and protecting people's status was more emphasized. In 1982 four drafts were attempted by the Civil Law Drafting Group within the Legislative Affairs Commission of the NPC Standing Committee, and between 1985 and 2000 very meaningful laws including the General Principles of Civil Law (1986), Economic Contract Law (1981), Foreign Economic Contract Law (1985), Technology Contract Law (1987), Unified Contract Law (1999), Succession Law (1985), Adoption Law (1991), Guarantee Law (1995) were made and promulgated. In 2001 PRC joined WTO, and in 2002 the Legislative Affairs Commission submitted the Draft Civil Code to the NPC Standing Committee (but not proceeded anymore) and NPC legislated Real Right Law in 2007. In the process of the drafting work on a civil code and all the laws concerning civil matters, there have been many controversial issues, which were constantly debated among scholars, professionals, government officials and statesmen. The controversies were mainly focused on the formation and contents of the laws. And those various debating perspectives were fundamentally derived from the conflict between Chinese conventional socialism and new market economy policy. This study explains the history of civil law legislation and contents of enacted statutes as well as the drafts for Civil Code of PRC. In addition the study analyzes controversial points and their backgrounds.