Forget The Discussion Draft, China's Tort Law Is Already Here.

Earlier this month, China's National People's Congress released a discussion draft for a "new" Tort Code. The Draft Tort Code contains little that is new and even less that is interesting. China already has a very complete and complex system of tort law, and even if passed into law, the Draft Tort Code is unlikely to make a dent. The Draft Tort Code merely repeats in fragmentary form what already exists. Whether China adopts the Draft Tort Code or not, is not important because China already has a full system of tort laws. The standard three volume treatise on Chinese tort law by Yang Lixin 杨立新 is over 2,500 pages long. The draft tort law is only 25 pages long. There is simply no way this law will have any impact on tort law in China and one even has to wonder why the People's Congress is even bothering with it.

To give a few examples:

-- Article 22 of the Draft recognizes the right to emotional damages. Though this is a major issue, China's Supreme Court granted that right back in 2001. See 最高人民法院关于确定民事侵权精神损害赔偿责任若干问题的解释 where the Supreme Court explained various issues arising from recognizing the right to emotional damages in civil tort matters. A copy of this decision can be found, in Chinese, here.

-- Article 55 of the Draft sets forth an informed consent requirement in medical matters. Again though, this has already been recognized in China. See Article 11 of the Medical Malpractice Rules[in Chinese], 医疗事故处理条例, issued in 2002 .

-- Article 34 of the Draft states that employers can be vicariously liable for the torts of its employees. Again, this is nothing new, as China's Supreme Court first set out this obligation in 1988 and it did so again in 2003. Vicarious liability is a core principal of Chinese tort law.

-- Section 8, Articles 65--68, of the Draft provides for liability for environmental pollution. This obligation is already provided for in Article 124 of the China's Basic Principles of Civil Law and it is dealt with in great detail in various pollution control laws, such as the Law on Prevention and Control of Air Pollution, the Law on Prevention and Control of Water Pollution and the Law on Prevention and Control of Pollution from Environmental Noise.

-- Section 5, Articles 41 -- 47, provides for liability for defective products. Liability for product defects was already provided for in Article 122 of the Basic Principles of Civil Law and has been dealt with in further and great detail by such laws as the Food Safety Law and the Product Safety Law.

The same applies to the Draft's provisions on medical malpractice and on traffic accident law: China's existing law already covers the field in great detail.

But there is an important lesson to be learned from all this for foreign companies doing business in or with China: do not ignore China's tort laws and do not believe for a second that it has none. For an interesting discussion on this, check out our post from 2007, entitled, "One Night In China And The World's Your Oyster Foreign." Far too often, foreign investors in China operate under the notion that there is no law in China and certainly no real tort law. My concern is that if the Draft Tort Law is not passed (which I predict will be the case), this will only serve to confirm the mistaken impression that China has no tort law.

The opposite is true. China has a fully developed tort system and, unlike some of its laws that are simply "on the books," tort matters are routinely litigated in China. If you are doing business in China or even with China, you should be aware of China's tort laws, particularly as they apply to your business. China's tort law system is vast and complex and continually evolving, as is true of the tort laws in every country with an active and vigorous legal system.

UPDATE: China Environmental Law Blog looks at the draft's impact on environmental torts in China and seems similarly underwhelmed.

UPDATE: Greenlaw discusses the draft here and two law professors have translated it into English here.

Comments

Steve: There is simply no way this law will have any impact on tort law in China and one even has to wonder why the People's Congress is even bothering with it.

Because under a civil law system, judges are not supposed to make law and law comes from the legislature. Chinese tort law is a mess of practices and ad-hoc decisions that needs to be systematized and codified. In common law countries, it's largely judges that create new law by case-by-case decisions. This is not how things work in civil law systems.

The reason that it needs to be codified is that the laws that exist deal with *current* situations. If you have a new and unusual situation involving torts that no one has ever thought of, you need to set of systematic principles to determine how the case is to be decided, and what the NPC is doing with the Tort Law is to take existing practice, figure out what the are basic principles that describe existing practice, codify them, and so when you come up with some new and original case that no one has ever thought of, you have some system for dealing with it.

Steve: The standard three volume treatise on Chinese tort law by Yang Lixin 杨立新 is over 2,500 pages long. The draft tort law is only 25 pages long. There is simply no way this law will have any impact on tort law in China and one even has to wonder why the People's Congress is even bothering with it.

The whole point of codification is to turn that 2500 pages into 25 pages. The theory behind civil law codification is that you take 2500 pages of practice and then turn them into 25 pages of basic principles through which a reasonable intelligent person can read, understand, and then make the same decisions that they would have had they read 2500 pages of text.

The role of a judge in a civil law system and common law system is *very* different. Typically a judge in a common law system is going to have decades of legal experience before becoming a judge. A judge in a civil law system could be fresh out of college with nothing more than a four year bachelors. Setting up a system so that a judge can read 25 pages of law, and maybe another 100 pages of commentary and make correct decisions is the point of codification. Part of why the Tort Law is important is that it puts everything in one place. So that the judge can look at one law rather than fifty.

Also there is a lot that is interesting in civil law codification. When people do legal codification, there are fights on practically every word and every character of the law.

Posted by: Twofish | November 11, 2009 7:55 AM

Also codification is a big deal for law enforcement. If you are in Beijing and Shanghai, there isn't a shortage of judges and lawyers that have read all 2500 pages of a treatise Chinese tort law. If you end up in rural Hunan, the number of people that have read all 2500 pages is a lot smaller, and you don't have enough judges and lawyers that have the time to read 2500 pages of tort law to make a decision.

If you can distill everything into 25 pages with maybe another 100 pages of commentary, then you have something that a judge in rural Hunan can read, understand it, and then make decisions that are more or less what someone that has read all 2500 pages of a tort law treatise would make.

So yes the Tort Law is a big deal since the practice aspects of getting justice in China are more important than the theoretical aspects.

Posted by: Twofish | November 11, 2009 8:04 AM