Nothing New under the Sun? New Codifications and Old Questions, by Marcus Galdia

Creativeness in Law and Judicial Creativeness

Creativeness in law as a topic of academic inquiry is challenging in many respects. Law, unlike some other forms of communication, avoids subjectiveness, which as a rule characterises newly and originally created works. Moreover, as law is valid only within institutional limits (mainly those set by supreme courts), it practically allows creativeness only within these limits. Transgressing institutional limits, i.e. creating ‘subjective’ law, is possible and is practiced, for instance, in scholarly projects of proposed legislation; yet this ‘scholarly law’ is not valid law. Therefore, institutional constraints of legal creativeness steer all attempts to deal with law that is an exercise of power and not simply an intellectual activity. This holds true particularly when the work of judges is concerned. Judicial creativeness is a quintessential example of creativeness in law as it concerns law in its most relevant, yet also most fragile moment – that is its application by judges. In fact, judicial creativeness covers several types of the application of law beyond its standard application to facts. These problems are regularly discussed under the label of ‘legal interpretation’. In turn, judicial creativeness covers mainly the application of new regulations in courts where new law with all its unavoidable problems needs to be applied for the first time. Next to it, it also concerns the invention of argumentative structures for dealing with regularly upcoming problems in the application of new regulations. I assume that the types of judicial creativeness could be multiplied depending upon the research perspective, as the ‘one size fits all’ approach is not suitable for contemporary comparative legal research (Jaakko Husa, 2023, Comparative Law’s Pyrrhic Victory, In: Maastricht Journal of European and Comparative Law, vol. 30 (6), pp. 680-688). In my contribution, I will focus on the second type of judicial creativeness that I highlighted above, and I will show how it influenced a court decision where it was applied with reference to the recently enacted Chinese Civil Code.

Challenges of New Legal Codifications

New codifications are particularly relevant to the research into judicial creativeness. They challenge regularly all jurists; yet judges are most concerned by them as they must base their decisions on them, explicitly and unequivocally. Other jurists may test new laws without commitments to any binding form in their reasoning – for instance, by expressing doubts about the inner logic of new pieces of legislation. Yet judges are expected to know for sure what other jurists may allow themselves to suppose and to suggest. Moreover, new codifications are often perceived as attempts to provide answers to new social challenges and to guarantee stability and coherence of the legal system (Michele Graziadei and Lihong Zhang, On Civil Codes: A Twenty-First Century Perspective, In: Graziadei/Zhang (eds.) The Making of the Civil Codes. A Twenty-First Century Perspective. Singapore: Springer, pp. 1-16, here p. 1). Whether a codification can meet such high expectations at all is another question considered by legal scholars (Jaakko Husa, 2015, A New Introduction to Comparative Law, Oxford/Portland: Hart, p. 262 sq). Proponents of the codification idea have argued that new codifications as a rule propel social progress (Jean-Louis Halpérin, 2009, Profils des mondialisations du droit, Paris: Dalloz, p. 163). They have also claimed that while working with rules expressed in general terms, future or unthought of factual circumstances could be easily integrated by judges into the network of existing legal arguments. Opponents of systematic codification maintained that factual circumstances are too multiple to be regulated in advance and that case law is therefore a better-suited way to cope with the multiplicity of socially relevant situations. Additionally, it has been critically remarked that unavoidable amendments to codifications destroy their systematic character and by so doing finally prove the hopelessness of any attempt to codify social life in terms of law (Michele Graziadei and Lihong Zhang, On Civil Codes: A Twenty-First Century Perspective, In: Graziadei/Zhang (eds.) The Making of the Civil Codes. A Twenty-First Century Perspective. Singapore: Springer, pp. 1-16, here p. 2). Meanwhile, the discussion about the usefulness of codification as a legal text uncovers another question – namely whether problems in the application, especially the argumentative devices employed by judges, may display advantages and disadvantages of new codifications more fully. Some of those issues are noticeable in the provisions of the new Civil Code of the People’s Republic of China which I will use as my source of reference in this contribution.

The Chinese Civil Code of 2021

In 2021, the People’s Republic of China enacted a new civil code (Zhonghua Renmin Gongheguo Minfadian 中華人民共和國民法典) which is acclaimed in academic literature (Ding, Yijie, Peter Leibküchler, Nils Klages, Knut Benjamin Pißler. 2020. Zivilgesetzbuch der Volksrepublik China. In: German Journal for Chinese Law, vol. 27/3 – 4, pp. 207–417; Herbots, Jacques Henri. 2021. The Chinese New Civil Code and the Law of Contract. China-EU Law Journal, vol. 7, pp. 39 – 49).

The Chinese Civil Code, the first of its kind in the country, consists of 1260 articles, divided into seven Parts and Supplementary Provisions (Liming Wang, 2023. System Innovations: Characteristics and Contributions of the Chinese Civil Code, In: Michele Graziadei, Lihong Zhang (eds.) The Making of the Civil Codes. A Twenty-First Century Perspective. Singapore: Springer Nature, pp. 341-363). The seven Parts are General Provisions, Real Rights, Contract, Personal Right, Marriage and Family Law, Succession Law and Tort Liability (Qiao Liu, 2023. The Chinese Civil Code: The Problem of Systematization, In: Michele Graziadei, Lihong Zhang (eds.) The Making of the Civil Codes. A Twenty-First Century Perspective. Singapore: Springer Nature, pp. 203 – 222). The introductory Part I of the Civil Code, General Provisions of the Civil Law of the PRC (Zhonghua Renmin Gongheguo Minfa Zongze 中華人民共和國民法總則) consists of 204 articles, divided into ten Chapters. I will not go further into its structure as my case study, which follows, concerns explicitly only one article of the General Provisions.

Old Problems in the New Code

In 2021, the Beijing Changping District Court had to decide a lawsuit between the plaintiff, Beijing PuRui Te (State Grid High Voltage Transmission Technology Co, Ltd.), and its previous employee, the defendant, Mr Si Xinlu, concerning a claim for damages (Jing 0114 Min Chu no. 822 of July 12, 2021). The defendant had started working for the plaintiff’s company in 2018. As he was not a resident of Beijing, the plaintiff submitted for him an application for residence registration, popularly called ‘hukou’(戶口) in Chinese, after which the competent municipal authorities accepted this application. On 11 September 2018, PuRui Company, Si Xinlu, and the Changping District Human Resources and Social Security Bureau signed the “Service Agreement for Introducing Non-Beijing Graduates to Changping District,” stipulating that Si Xinlu should abide by PuRui Company’s rules, employment contract, and related agreements, and fulfil the “Commitment for Introducing Non-Beijing Graduates,” with a minimum service period of five years. Si Xinlu joined the company on 1 October 2018 but terminated his contract unilaterally on 15 March 2020.

Hence, the defendant, who was not a resident of Beijing, obtained an employment contract with the plaintiff and based on it he was provided with his residence certificate for Beijing, a permission that is difficult to obtain in China. The plaintiff contended to have suffered losses due to the defendant’s premature termination of the contract. Meanwhile, the defendant contended that his resignation did not cause any losses to the plaintiff. However, the court obliged the defendant to compensate the plaintiff for the economic losses that the plaintiff allegedly suffered. Particularly, the court held that the defendant wasted the plaintiff’s share of the Beijing hukous due to the premature termination of the contract.

The judge characterised the lawsuit as an employment dispute as he had to decide primarily the issue whether the plaintiff suffered economic losses due to the premature termination of the contract by the defendant. Yet answering such a question in the context that implies administrative acts, such as the issuance of hukou, proved intricate. Furthermore, to support his finding that the plaintiff suffered losses, the judge stated that the defendant’s actions were contrary to the ‘core socialist values’ and could have a negative impact on society, referring obviously to Article 1 of the Civil Code (Lihong Zhang, A Brief Analysis of Cryptotypes in the Chinese Civil Code: Legalism and Confucianism, pp. 365-383, In: Michele Graziadei, Lihong Zhang (eds.) The Making of the Civil Codes. A Twenty-First Century Perspective, Singapore: Springer). Art. 1 of the Civil Code says:

“This law is formulated in accordance with the Constitution of the PRC for the purposes of protecting the lawful rights and interests of the persons of the civil law, regulating civil-law relations, maintaining social and economic order, meeting the needs for developing socialism with Chinese characteristics, and carrying forward the core socialist values.”

The judge did not discuss further these values in relation to his case. Meanwhile, the editors of the English translation of the Chinese Code characterise them as follows: “The core socialist values: prosperity, democracy, civility and harmony are values that underpin the nation; freedom, equality, justice and rule of law are values that buttress the society; patriotism, dedication, good faith and amity are values that underlie individual conduct.” (Meng Wan, Feng Zhu, Benedict Amour, Hailong Tang, 2022. The Civil Code of the People’s Republic of China. English edition. Singapore: Springer, p.1). Thus, while referring to Art. 1, the judge sanctioned the behaviour of the defendant that he perceived as detrimental to society. Yet, this finding did not help him to answer the question whether the plaintiff suffered an economic loss by a possible loss of a hukou. Therefore, combining the main question and the general clause of the code proved to be counterproductive in this newly coined argumentative device. The introduction of general clauses such as the Art. 1 of the Chinese Civil Code was always perceived as problematic because such clauses may lead to avoidance of explicit determination of legal matters that constitute main issues in lawsuits. Additionally, the judgment shows how difficult it is for courts to deal with general concepts of law that are of ideological nature in relation to issues such as contracts or damages that are perceived as rather technical. In my opinion, the shaping of a new argumentative device to answer the main question of the discussed lawsuit was not convincing.

Conclusions

In my contribution, I demonstrated how a general provision of a new code became operative in a court decision and how it gave rise to shaping an argumentative device to cope with a complex legal problem. This result suggests that new codifications will always lead to problems of application that will be solved in courts with the help of expedient argumentative devices that enable the application of law in complex legal situations. Judicial creativeness appears in such instances as a type of shaping argumentative devices that help judges to cope with legal complexity that overburdens them when applying the law. Judges may be more or less successful in their efforts to shape such argumentative devices, as demonstrated in my analysis. In such situations, judges may avoid explicit argumentation and limit themselves to implicit conclusions. Yet, the requirement of explicitness in judgments needs to be maintained as only explicitness paves the way to a better understanding and application of the law. Finally, the very task of uncovering converging and contradictory structures in all argumentative speech acts that are responsible for the emergence of law in societies – for instance, in acts of judicial creativeness, remains a valid proposal for future comparative research into law.

Posted by Marcus Galdia, Dr. phil. Dr. iur., Associate Professor of Law, International University of Monaco, mgaldia[at]monaco.edu, ORCID: 000-0008-0490-5213.

This piece belongs to BACL’s “Judicial Creativity” series which shines a light on the role of judicial creativity in recent reforms of the laws of obligations around the world. The series is edited by Dr Radosveta Vassileva (Middlesex University), Dr Sirko Harder (University of Sussex), and Prof Yseult Marique (University of Essex). To access the other pieces from this series, either select the “Judicial Creativity and the Law of Obligations” category or click on the #Judicial Creativity&Obligations tag on the BACL Blog.

Suggested citation: M Galdia, ‘Nothing New under the Sun? New Codifications and Old Questions’, BACL Blog at https://british-association-comparative-law.org/2024/10/25/7388/