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)
