A draft civil code, currently being reviewed, will help solve the
dilemmas judges face in handling civil disputes, a judge with the
Beijing No.1 Intermediate People's Court has said.
Judge Zhang Nongrong told China Daily that the lack of a
civil code, sometimes resulting in inconsistent or contradictory
legal outcomes, and the ambiguity of some critical civil rights
concepts, have left too many uncertainties for judges.
"The judges have too much power to produce rulings due to the
loopholes in civil laws," said Zhang.
"That has led to quite a number of appealed cases," he added.
In
addition to the General Principles of Civil Law and other specific
laws on civil rights, China's Supreme People's Court has issued
judicial interpretations concerning trials of civil cases in an
effort to plug the holes left by the lack of a civil code.
Statistics from the Supreme People's Court indicate that it has
issued more than 80 civil judicial interpretations in the past five
years.
Among them are ones, which compensate for mental or emotional
suffering and ones on the Marriage Law, which have a great impact
on the life of the general public.
Zhang, however, said that these judicial interpretations are "not
systematic," adding that some have even gone beyond their charter
and come up with new concepts of basic civil rights.
"Judicial interpretations should restrict their role to providing
feasible details to guide trials," said Zhang.
"The basic civil rights should be defined by laws."
Last February, a judicial interpretation on compensation for mental
and emotional suffering listed actions that constitute the
violations of personal rights, though that right is nowhere
mentioned in the General Principles of Civil Law.
The omission has put judges at an awkward position when it comes to
cases such as body searching, according to Zhang.
Zhang looked upon the civil code, which has been submitted in a
draft form to the Standing Committee of the National People's
Congress for discussion this week, as a way of accommodating some
basic civil rights like "personal rights" that have long been left
out of China's civil laws.
According to Zhang, the discrepancies between the General
Principles of Civil Law and other laws are also a source of
confusion for judges, who needed the guidance of the new civil
code.
He
gave as examples the acts of "coercion" and "deception," saying
that differences in related clauses in the General Principles of
Civil Law and the Contract Law have created difficulties in
application.
Civil acts where the other party uses coercion and deception are
treated as invalid in the General Principles of Civil Law, while
the Contract Law says that contracts which involve coercion and
deception can be cancelled but only those that hurt the national
interest are invalid.
"The new Civil Code should better define civil activities," said
Zhang.
(China Daily December 24, 2002)