The Federal Republic of Germany

Neither the founders of the Federal Republic's Basic Law (1949), nor the members of its lower house of the Parliament (the Bundestag), meant for the Civil Code to be constitutionalised. Instead, the GFCC took the crucial steps in doing so, during the first decade of the Federal Republic. In Germany, this process destroyed certain orthodoxies of separation of powers, in particular notions to the effect that (i) the domains of ‘public law’ and ‘private law’ were to be kept strictly separate, and (ii) the Basic Law (1949) did not require the ‘ordinary (non-constitutional) judges’ to interpret and apply the Basic Law, which was the exclusive province of the GFCC.

The German legal system is comprised of multiple, ‘supreme’ courts, for: civil and criminal litigation; administrative law; tax and finance; labour law; and social security. From this perspective, the GFCC is a sixth high court, whose assigned task is to resolve constitutional disputes. According to the Basic Law, the GFCC is not formally a ‘judicial body’, but a specialised organ whose task is to give formal answers to constitutional questions, while possessing the power to invalidate any legal act it finds contrary to the Basic Law. At the same time, the GFCC is arguably the most important of all jurisdictions, as the authoritative interpreter of the Basic Law, whose charter of rights binds all public officials, including every judge.Footnote ⁷

The constitutionalisation process was driven by two major factors: inter-court rivalry; and the consequences of two landmark rulings of the GFCC. In Elfes,Footnote ⁸ the GFCC held that Article 2(1)Footnote ⁹ of the Basic Law presumptively covered any action a person might choose, subject to permissible limitations on the part of state officials to protect the ‘rights of others’, and to defend the constitutional and moral orders. As applied in a long line of cases, the Elfes (1957) judgment made it clear that the charter was not restricted to rights enumerated in the Basic Law; indeed, Article 2(1) comprised an open-ended recognition of general ‘liberty.’ Given the virtually unlimited scope of Article 2(1), individual freedom and autonomy would naturally impact upon the private law. In its Lüth (1958) ruling,Footnote ¹⁰ the GFCC stipulated that the charter of rights – which it characterised as a normative system constituted by ‘objective constitutional values’ – attaches to all societal relations, ‘radiating’ outward, from the constitution to the civil code. The Court stressed that these ‘values’ infused the private law in ways that bound the judiciary. Moreover, the GFCC insisted that the ordinary judges must ‘balance’ those rights (of the Basic Law) against the private autonomy of the parties (enshrined in the provisions of the Civil Code), or two contending right against each other, in the context of the litigation at hand. In hundreds of subsequent decisions, the GFCC would require that judges of the Civil Code enforce the proportionality principle when engaged in such balancing, and that the ‘correctness’ of such decisions would be reviewable by the GFCC through the constitutional complaint procedure.Footnote ¹¹ Indeed, the diffusion of the proportionality principle went hand in hand with the consolidation of the horizontal effect of rights. The constitutional complaint has since become a routine cause of action against the judgments of ordinary courts, in essence, ‘appealing’ judicial rulings that fail adequately to apply constitutional rights, as conditioned by the GFCC's case law.

The GFCC took these decisions in the context of fierce inter-court competition for prestige and policy influence. Upon the advent of the new Basic Law, the Federal Labour court had decided to enforce the charter of rights directly, without authorisation from the GFCC or the legislator, in litigation between private parties. On the basis of the Labour courts’ theory – which articulated the position now known as the ‘horizontal direct effect’ of constitutional rights – the power of CJR could easily have diffused to all courts, converting the ‘concentrated’ system of reviewFootnote ¹² into something akin to the ‘diffuse’ system of CJR associated with the USA.Footnote ¹³ In this struggle for authority, the labour courts would have emerged the big winner, and the GFCC the loser. For their part, the civil courts had long treated the Civil Code as a ‘quasi-constitutional’ instrument of governance and nation-building,Footnote ¹⁴ overtly deploying natural law notions when interpreting the Code, which had grown to include more than 2,300 sections. The supreme court – now called the Bundesgerichtshof (BGH) – had long possessed enormous prestige, however diminished by complicity with the recent Nazi horrors. In contrast, the GFCC was a fledgling newcomer. Hovering in the background was the classic ‘public’ versus ‘private’ law divide. Traditionalists assumed that the domain of public law was limited to issues revolving around the relative competences of state institutions and public authority. However, following from state theory developed during the Weimar Republic by Smend and others,Footnote ¹⁵ the constitutional law could be conceived as a body of higher norms capable of unifying the juridical and political state, not least, as a matter of formal hierarchy and positive law. Indeed, Smend's ideas of ‘constitutional integration’ of law and society heavily informed the GFCC's early jurisprudence of objective constitutional ‘values’ in Lüth.

Thousands of commentaries on Elfes and Lüth have been written.Footnote ¹⁶ For present purposes, what is important are certain strategic (political) logics. First, the Elfes line of jurisprudence made it clear that Article 2(1) ‘protects every form of human activity without consideration of the importance of the activity for a person's development’.Footnote ¹⁷ It follows that there would be no need for the BGH's reliance on natural law norms or reasoning to ‘fill gaps’ or generate ‘new’ rights, since the Basic Law itself already contained any unenumerated right that might be pleaded in litigation. Second, Lüth precluded the position charted by the Federal Supreme Labour Court, while announcing that rights were instead possessed of ‘horizontal indirect effect’ (stipulating that the codes must be interpreted in conformity with the Basic Law). Thus, although constitutional rights could not be directly pleaded, inter partes, all judges were under an institutional obligation to harmonise the private law with the Basic Law. In this part of Lüth, the GFCC acknowledged the relative autonomy of the ordinary courts: a private law dispute would ultimately remain litigation organised by the private law. Third, the constitutionalisation process would proceed through judicial balancing and dialogue, which would necessarily unfold in fluid, case-sensitive ways. The GFCC could control the contours of the process, through the constitutional complaint procedure. Put differently, the GFCC delegated some of its authority to interpret the charter of rights to the ordinary courts, but retained its exclusive power to annul statutes and all other infra-constitutional legal acts, including the rulings of the ordinary courts. Fourth, the process quickly exhibited its capacity to displace the legislator, as when a judge ‘rewrite’ the Civil Code so that it includes provisions that the parliament have already explicitly rejected. In the Soraya (1973) case, the courts did just that, by supplying a remedy for damages when one's ‘right of personality’ (privacy) has been violated by another, despite the fact that the Bundestag had pointedly refused to do so on several prior occasions.Footnote ¹⁸ The Civil Code is legislation, but it must remain compatible with the dictates of the Basic Law, the ultimate master of which is the GFCC.

The GFCC's pronouncement of the ‘horizontal indirect effect’ of rights may well have yielded rhetorical benefits, communicating to ordinary judges that the GFCC was prepared to engage in a certain degree of inter-court dialogue and diplomacy. But the holding did not end inter-court rivalry. BGH judges and civil law scholars continued to criticise Lüth as a usurpation of the power of the civil courts, and conflicts have regularly flared into the open.Footnote ¹⁹ In the end, judges and scholars have accepted the basics of Lüth, in large part, because it expanded the constitutional competences and status of the BGH and other courts as the status of rights-based judging was increasing domestically and in the European courts. In any event, the holding did not stop the constitutionalization of the private law. Indeed, as Kumm argues,Footnote ²⁰ the distinction between ‘direct’ and ‘indirect’ horizonal effect proved to be devoid of practical relevance, not least because the ordinary courts were placed under a reviewable obligation to ensure that the private law was compatible with the charter of rights when the latter was in play.

The European Union

Chinese officials and scholars rarely discuss the case of the European Union (EU). In the EU, there is no unified civil code, although a series of major efforts at producing a ‘harmonised’ civil code began in the 1980s and continue into the present.Footnote ²¹ That said, the founding treaties of the EU contained certain fundamental rights of a private law nature. With its decision in Defrenne II (1976), the Court of Justice of the EU (CJEU) went further than the GFCC, announcing the horizontal direct effect of the ‘equal pay for equal work’ provision of the Treaty of Rome, a decision that would ground the expansive development of the sex equality domain ever since, as well as non-discrimination in the workplace more generally.Footnote ²² After the CJEU's Cassis de Dijon (1979) ruling (on the free movement of goods) served to revive European integration,Footnote ²³ EU legislators adopted a series of ‘directives’ that constituted – and ‘constitutionalised’ – the EU's private law.Footnote ²⁴ This corpus is today considered to be a type of ‘economic constitution’.Footnote ²⁵ EU Directives separately cover broad areas of private law, including consumer rights and protection, unfair terms in contracts, e-commerce, financial services, social security and private pension schemes, non-discrimination on the basis of ethnicity, age, gender, and sexual preference, etc.

In December 2000, the EU codified a Charter of Rights, which binds not only the EU but the member states, including national courts, whenever they implement EU legal norms within domestic legal orders. The Charter contains a handful of ‘absolute’ rights: to human dignity (Article 1), the right to life (Article 2), and the integrity of the person (Article 3); to the prohibition of torture and inhuman treatment (Article 4), and of slavery and enforced labour (Article 5). These are followed by long list of both negative and positive rights that are qualified by a limitation clause, including the rights to education (Article 14), work and choice of occupation (Article 15), fair and just working conditions (Article 31), social security and social assistance (Article 34), health care (Article 35), services of ‘general economic interest’ (Article 36), environmental protection (Article 37), and other ‘social rights’, some of which have no analogs in Chinese law. Article 52 of the EU Charter echoes the case law of the European Court of Human Rights: authorities must respect the proportionality principle when enforcing qualified rights.

Sacha Prechal – currently a justice on the CJEU – put the issue of the horizontal effect of Charter rights in this way:

The bottom line is that, as the field of EU private law expands, so does the legal obligation to interpret and apply its elements in light of the Charter.

In addition to the Charter of Rights, the CJEU controls the interpretation of the ‘general principles’ of EU law, which includes a list of rights that the CJEU began to construct in the 1970s, on the basis of the European Convention, and the ‘constitutional traditions’ of the member states. The general principles have treaty rank (that is, ‘constitutional status’), which the CJEU and national courts have leveraged to upgrade the effectiveness of national standards of rights protection. The German labour courts, for example, had opposed (since the 1950s) the GFCC's refusal to extend full proportionality analysis to the right of non-discrimination with regard to certain discriminatory wage agreements. During the 2004–2006 period, however, the Federal Supreme Labour Court and the CJEU forged a powerful interpretive alliance that eventually forced the GFCC to do so, after the matter had been ‘constitutionalised’ under EU directives, general principles, and a landmark rulingFootnote ²⁷ of the CJEU.Footnote ²⁸

As these developments make clear, the migration or ‘radiation’ of rights-based adjudication of private law disputes in Europe also codified the view that rights necessarily possessed ‘horizontal’ properties, given that private power often rivalled or surpassed the power of the state in certain domains. Under this view, there can be no firm distinction between public and private law, insofar as an overarching purpose of law is to remedy unlawful harms caused by the actions of any actor possessed of otherwise unconstrained power.Footnote ²⁹

Diffusion

At the domestic level, complex, multi-dimensional paths of integrating the constitution and the private law are taking place across the globe, including in Asia. In common law systems, the Constitutions of Ireland (1932) and South Africa (1996) explicitly provide for the horizontal direct effect of rights, which gradually led to routine judicial enforcement of rights in private law litigation.Footnote ³⁰ In India,Footnote ³¹ the innovative construction of the constitution by the courts have ‘transformed’ the private law. In Canada, a labour dispute led the Supreme Court of Canada to adopt an important, if weaker, version of horizontal indirect effect with respect to the common law, once the 1982 Charter of Rights entered into force.Footnote ³² In civil law systems, one finds newer constitutions gradually impacting, or reflected in, much older civil codes, as in Brazil (whose present Constitution dates from 1988, while its Civil Code was adopted in 1916).Footnote ³³ In Colombia, the Constitutional Court has since the 1990s fully committed to extending the reach of rights into the private law,Footnote ³⁴ leading an association of civil law professors to openly oppose some of its Court's most important opinions on the topic.Footnote ³⁵

Curiously, Chinese scholars rarely mention the Asian cases, despite the fact that civil codes of German inspiration are common in the region, and to China itself. The Taiwan Area of China and South Korea possess powerful constitutional courts that embraced German-style doctrines, as means of unifying the legal system and enhancing the effectiveness of rights protection.Footnote ³⁶ In South Korea, the Supreme Court issued a landmark ruling in 2010Footnote ³⁷ that formally recognised the horizontal indirect effect of constitutional rights on the private law and the Civil Code of 1958, consolidating prior case law that had implied as much. Decisions strengthened the protections afforded to claims of inheritance, labour law, privacy and defamation, religious education, and of non-discrimination of transsexuals, was produced in the context of intense inter-court rivalry, a situation reminiscent of the German case. In consequence, the Supreme Court found it ‘necessary’ to embrace the horizontal effect of rights, not least, to ‘enhance’ its own relative prestige.Footnote ³⁸ In the Taiwan Area, the constitutional reconstruction of the Civil CodeFootnote ³⁹ gathered momentum in the 1990s, particularly with respect to freedom of expression, labour relations, gender equality,Footnote ⁴⁰ and family law, as the Constitutional Court built and reinforced its CJR authority.Footnote ⁴¹ As in South Korea, many past and current judges and legal scholars of the Taiwan Area have pursued graduate studies in Germany, and the Lüth line of cases has been widely discussed.Footnote ⁴² In January 2022, a constitutional complaint procedure was added to the jurisdiction of the Constitutional Court, which is likely to bolster its authority vis-à-vis the ordinary judges and the Supreme Court of the Taiwan Area. In contrast, in Japan a very weak form of horizontal indirect effect can be discerned, a product of relatively passive deployment of CJR.Footnote ⁴³

In summary, the constitutionalisation phenomenon contains elements of congruence in that a broad range of legal systems have embraced its main features, while being multi-faceted and diverse on the ground, in any specific polity.

Political Supremacy and Judicial Review

The evolution of a state-controlled, ‘market-based’ economy in China has entailed extensive legal reform since its advent in the 1980s.Footnote ⁴⁵ The CPC has overseen several major amendments to the Constitution, and promoted new legislative regulatory frameworks, some of which (eg, the 2007 law on property) were subject to intensive debate over more than a decade before final adoption by the NPC. In recent years, the pace of ‘comprehensive’ statutory reform has accelerated, with the NPC passing major reforms on tort liability (2010), consumer protection (2013, 2018, 2019), e-commerce (2019), banking and finance (2017), among others, some of which have been absorbed into the most far-reaching of all: the Civil Code (2021). Some of these statutes touch directly on the powers of the courts, such as the administrative litigation law (2014, amending the 1989 Act), which seeks to strengthen administrative judicial review, including extending standing rules, clarifying those related to public interest actions, and creating new remedies binding on administrative authorities.Footnote ⁴⁶ In 2018, the NPC conferred vast competences on what is now a super-ministry – the State Administration for Market Regulation – to adopt and supervise regulation across sectors as diverse as food, drugs, cosmetics, intellectual property and internet services, as well as to supervise compliance with anti-trust rules. Thus, considered as ‘law on the books’, the Chinese regulatory landscape has been transformed.

At the same time, the CPC has rationalised and reinforced its own centralised, ‘political’ supervision of the courts. The current ‘conventional understanding’Footnote ⁴⁷ rests on the view that several inter-locking systemic issues had been settled in the 2000s. The first concerns the prohibition of CJR.Footnote ⁴⁸ In 2008, an SPC Decision destroyed a movement led by certain judges and legal scholars in favour of CJR. As readers will know, the Qi Yuling litigation, which unfolded over a decade, formally concluding in 2008 when the SPC repudiated an earlier decision to the effect that the right to education, enshrined in the Constitution of the PRC, was directly effective in a private dispute. We will return to the Qi Yuling saga later on in the article. The second issue involves the importance of constitutionalism and state theory more generally. The SPC's reversal in 2008 capped a larger process in which the CPC had made it abundantly clear to academics, litigators, and judges that the Constitution was a ‘dead-letter,’Footnote ⁴⁹ and off limits for discussion. This institutionalised taboo meant that the basic tenets of rights-based constitutionalism, which had diffused across the world since the end of World War II,Footnote ⁵⁰ were anathema. These decisions, however, left open the answer to a third question: how does the Party and the NPC ensure the compatibility of legislation with the Constitution? After all, the Constitution – as the CPC continued to insist – comprised positive law, anchoring its own legal authority.

In response, party elites have built a system of control mechanisms, including bolstering what amounts to the ‘political review’ of legislation (in contrast to ‘judicial’ review). Historically, in legislative sovereignty systems, political review of the constitutionality of legislation has at times been a normal component of parliamentary life. To take just one example, what is now the French Supreme Court (the Cour de Cassation) evolved from a committee of parliament (established in the Constitution of 1795) to answer questions of statutory interpretation, given that the judiciary was forbidden to do so.Footnote ⁵¹ In the French Third Republic (1870–1940), eminent scholars even argued that Parliament functioned as a type of constitutional ‘court’ (jurisdiction), whenever it decided questions of constitutionality,Footnote ⁵² a procedural legacy that exists to this day (in the guise of the motion d'rrevabilité of the National Assembly and the Senate). We discuss the present system of Chinese ‘political review’ later on in the article. Meanwhile, the judiciary has itself been significantly restructured, through the so-called ‘quota-reform’ initiatives that took place in the 2014–2017 period, but which have been discussed since at least the late 1990s. The reforms, overseen by the Supreme People's Court, were meant to reduce the size of the judiciary, and enhance the accountability of judges, without necessarily re-‘imagining’ their independence from the Party.Footnote ⁵³

Embracing the ‘Rule of Law’

Notwithstanding the fact that CJR was formally prohibited in 2008, the CPC has prioritised the ‘rule of law’ at least since 2014. In China, the phrase the ‘rule of law’ encompasses a complex blend of ideological and legal meanings. For present purposes, the phrase entails formal commitments: (i) to govern through more detailed statutes, and (ii) to enhance the liability of officials working at the provincial and local levels, and (iii) to confer greater autonomy on judges to enforce both. The strict control of the Party over the courts is presumed to be consistent with these goals, a fact that many consider to be in contradiction with ‘rule of law’ requirements.Footnote ⁵⁴

A long list of official pronouncements has gathered in force. In 2014, the Central Committee of the CPC issued a Decision on Several Important Questions related to the Full Promotion of Ruling the Country According to Law, which called for ‘improvements to supervisory mechanisms of constitutional implementation’.Footnote ⁵⁵ The Decision also required all citizens, public officials, state organs, the armed forces, political parties, and social and corporate entities to ‘treat the Constitution as a fundamental norm … and assume the duty to defend the Constitution's dignity’.Footnote ⁵⁶ In 2021, the Central Committee adopted its Plan on Building the Rule of Law in China (2020–2025), which restated the Party's determination ‘to persist in the supremacy of the Constitution and the law, strengthen the unity, dignity, and authority of the legal system,’ while emphasising that ‘no laws, regulations, or legal documents may conflict with the Constitution’.Footnote ⁵⁷ President Xi called attention to the Constitution's ‘higher law’ status, promising before the 19^th CPC National Congress (2017) that the state would ‘ensure compliance with the Constitution, advance constitutional review, and safeguard the authority of the Constitution’.Footnote ⁵⁸ By ‘constitutional review’, Xi was likely referring to reinforced procedures of the NPC and its Standing Committee (examined below).

There have always been gaps between ‘law on the books’ and ‘law in practice’ in the PRC. Like the Constitution, statutes, no matter how much they are publicised and celebrated by the CPC or the NPC, have not always been enforced as anything more than aspirational frameworks dressed in the trappings of law. Further, the best empirical research has demonstrated that the CPC has taken pains to maintain ‘multi-layered mechanisms’ of ‘pressure’ and control over the courts, which have been tightened under President Xi's tenure.Footnote ⁵⁹ The new Civil Code of 2021 brings these tensions – given the prohibition of CJR – to the forefront.

The Norms and Structure of China's New Civil Code

The Civil Code (2021) contains legal norms that most modern constitutions present in the form of justiciable rights. These include human dignity, equality, liberty, freedom of movement, due process, personality rights (to one's name, personal honor, privacy, honor and reputation), prohibitions (of, inter alia, unlawful search and seizure; of defamation and libel; of harming the rights of others), and a host of social and economic rights (to work and to rest, to education, to social insurance schemes, to marry and inherit, to child support, inter alia), as well as various norms non-discrimination. In addition, the Code contains rights that are not found in the Constitution, including certain civil rights of the foetus (Article 15), the right to life (Articles 110 and 1002), the right to health (Articles 110 and 1004), the right to intellectual property (Article 123), the right of sexual harassment victims to seek declarations of liability of the tortfeasor and compensation (Article 1010), among others. The Civil Code therefore potentially is more ‘complete’ than the Constitution, and has the potential to displace Constitution when it comes to rights.

Modern charters of rights, both national and international, share certain core features.Footnote ⁶⁰ A small number of fundamental rights are expressed in absolute form, that is, they are not qualified by a limitation clause. From this vantage point, the most important provision of the Code is Article 110:

Further, the rights to life, dignity, health, and bodily integrity, ‘are protected by law and free from infringement by any organisation or individual’ (Articles 1002, 1003, 1004 and 1005). Most rights, however, are subject to a ‘limitation clause’, which in other legal systems explicitly authorises state officials, including judges, to restrict the scope of the right for some sufficiently important public purpose.

Limitation clauses come in one of two forms: (i) an umbrella license to abridge a cluster of rights, or all rights (eg, Article 1 of the 1982 Canadian Charter of Rights and Freedoms); and (ii) a bespoke clause attached to a single right (eg, Article 6 of the German Basic Law, enumerating the right to marriage and family life). The Civil Code, of course, is not a charter of rights; nonetheless it exhibits a mix of these familiar features. General limitation clauses are announced in Article 8 (‘When conducting a civil activity, no person of the civil law shall violate the law, or offend public order or good morals’), and Article 132 (‘No person of the civil law shall abuse his civil-law rights and harm the interests of the state, the public interests, or the lawful rights and interests of others’). In China, it is assumed that ‘public policy’ and ‘good morals’ most immediately refers to the policy goals of the CPC and the Party State.

Specific limitation clauses too are scattered throughout the Code. Article 1012 reinforces Article 8:

Article 999 relies on ‘reasonableness’ considerations:

And Article 1020(1) introduces both ‘reasonableness’ and ‘necessity’ requirements:

In Europe, these types of provisions – like the general clauses on ‘public order’ and ‘good morals’ – have led to the penetration of constitutional rights, as well as the constitutional command to enforcement the proportionality principle.

We have left three structural properties of the Civil Code for last. First, Article 3 makes it clear that the Code is fully judicially enforceable, including against state officials:Footnote ⁶¹

As important, the Code creates new causes of actions and remedies, a good example being for sexual harassment.Footnote ⁶² Second, the Code is not strictly private, in that it binds public authorities (eg, Article 243 authorises the expropriation of property, for public purposes, but subject to compensation and other ‘lawful rights and interests’), and will often overlap litigation challenging administrative acts.Footnote ⁶³ Third, Article 1 states that the Code complies with the Constitution:

Article 1, of course, raises primordial issues. Does either the Code or the Constitution evolve and, if so, through what processes? Does Article 1 require a doctrine of horizontal effect of the constitution and rights? If so, to what extent must the prohibition of CJR be modified? Third, the most important rights enumerated in the Code are simply announced, often without giving any interpretive guidance to judges.

Thus, considered as an instrument of delegation, the Civil Code expressly charged judges with the task of enforcing vague, incomplete, open-ended norms. This indicates that the CPC meant to empower judges with the necessary authority of interpretation and lawmaking, at least in individual cases.

The Strict Separation of Private and Public

Conservatives defend preserving the pre-Code legal system as much as possible. For this group, the Code was meant to build on existing precepts of the private law, extending without transforming them. The core of the argument – orthodoxy in Europe prior to Lüth – is that the public law and the private law are autonomous legal domains. Long, the dean of the Beihang law faculty, claims that Article 1 of the Code establishes only a procedural requirement, at most, trite law.Footnote ⁶⁶ Confirming that the Constitution permits the NPC to adopt the Code closes inquiry into the statute's legality. Substantive incompatibilities between the two texts should be tolerated or ignored. Although Long does not oppose interpreting the Code in harmony with the Constitution, he rejects any suggestion that the Code ‘implements’ the Constitution, or makes the latter ‘indirectly’ justiciable. The Constitution is not the ‘parent’ of the Code; and the Code's internal force does not depend on the Constitution, except in the banal procedural sense just mentioned. Moreover, Long, and others assert that a correct understanding of Chinese and comparative history would not support a ‘constitutional’ reading of the private law. Consolidating the private law deserves to be acclaimed, but not because it embodies the PRC's constitutional values.

The Civil Code as the ‘Fundamental’ Law of China

In a 2020 article featured in China Law (a journal subtitled, ‘A Professional, Authoritative Record of the Rule of Law’),Footnote ⁶⁷ a prominent drafter of the Civil Code – Sun Xianzhong, a member of the NPC Constitution and Law Committee, and of the Chinese Academy of Social Sciences) – all but declares the Code to be what we would call a super statute, with an important caveat. Sun celebrates the Code as an ‘incorporation of the guiding principles of the CPC Central Committee for national governance, ensuring people's well-being, and advancing the development of a market economy …’Footnote ⁶⁸ The Code is the ‘cornerstone of the rule of law’,Footnote ⁶⁹ Sun tells us. Further, it expresses the ‘fundamental social norms’ of the country, ‘implementing’ the ‘basic guiding principles’ of the legal system, in order to ‘propel social progress, reform, and governance’ forward, and comprising ‘the most vital fundamental initiative,’ in comparison to any previous legal reform.Footnote ⁷⁰ In particular, Sin focuses attention on basic rights:

Following this litany comes the caveat: Sun forcefully denies that the Civil Code is or resembles a charter of rights. Bills of rights, he stresses, are merely ‘inspirational’ and ‘cannot bring [the People] any tangible benefits’.Footnote ⁷² He illustrates the point with reference to the French Declaration of the Rights of Man (1789) and the Universal Declaration of Human Rights (1948), examples that fatally subvert his own claims. The French Constitutional Council, in a famous 1971 ruling, ended a long-running controversy among scholars and politicians by incorporating the 1789 Declaration into the French Constitution;Footnote ⁷³ and domestic courts around the world recognise the UN Declaration to be a constituent component of the International Bill of Rights, provisions of which they regularly enforce, including in Hong Kong.Footnote ⁷⁴

A second group is willing to go further than Sun, arguing that the Civil Code performs ‘constitutive’ functions, including the ‘legitimation’ of private law.Footnote ⁷⁵ The view cannot be reconciled with Marxist-Leninist conceptions of law, or with the traditional dogmatics that would distinguish ‘private’ from ‘public’ law. Instead, the Code officially endorses a novel counter-narrative, challenging academics to reconceptualise Chinese constitutionalism and the rule of law. These scholars openly consider the various ways in which the Constitution and the Code overlap, and debate the consequences of such synergies. For some, such as Qian,Footnote ⁷⁶ this overlap is fully acknowledged, but it is for the legislator to harmonise the courts.

Those who embrace the Code's ‘constitutional’ features argue that, at a minimum, Article 1 of the Code implies the horizontal indirect effect of the PRC's Constitution.Footnote ⁷⁷ Nonetheless, many within this group worry that, in China, the courts are too weak, and judges too timid, to bear the heavy burden of constitutionalisation.Footnote ⁷⁸

Integrating the Civil Code and the Constitution

A third group considers the Civil Code to be a ‘supplement’ to its ‘parent’: the Constitution.Footnote ⁷⁹ Miao and Zheng argue these points expressly, while cautioning against the direct enforcement of constitutional provisions by the courts. Courts are to ‘indirectly’ apply the Constitution, through ‘constitutionally-conforming’ interpretations of the Code (ie, broadly speaking, the German doctrine).Footnote ⁸⁰ Han agrees, while seeing the Constitution as a positive constraint on judges, blocking excessively broad constructions of ‘private autonomy’, and grounding the substance and scope of the general clauses, whose purpose is to infuse the private law with the priorities of the Party and Chinese socialism.Footnote ⁸¹ Wang Liming, who plays a leading role in drafting the Civil Code, is also mindful of its constitutional dimension. In Wang's view, the Civil Code comprises a quasi-constitutional statute, while Article 1 authorises doctrines associated with the horizontal indirect effect of the Constitution. Judges are, indeed, under a duty to ‘concretise constitutional values’, through their adjudication of the Civil Code.Footnote ⁸² Wang, Shi, and others reference the European experience in support of their arguments,Footnote ⁸³ and some have even cited to Lüth.Footnote ⁸⁴

It is worth mentioning that the practical differences between (i) the ‘indirect effect’ approach to the relationship between the Constitution and the Civil Code, and (ii) Sun's conception of a more autonomous statute, are likely more theoretical than real, when considered in terms of litigation in the courts. In his China Law article, Sun revisits the Qi Yuling case,Footnote ⁸⁵ ostensibly to demonstrate how a dispute considered to be a ‘hard case’ a decade earlier has been recast as a simple case under the new Code. After discussing the proven facts (that Qi's identity had been stolen by another student, who used it to gain entrance into a business school), Sun notes that Article 109 of the new Code directly, and on its own, resolves the dispute. Article 109, to recall, declares the dignity norm; the other ‘personality rights’ in the Code are derived from dignity, including the protection of one's name, as enumerated in Article 110. Sun asserts that, because the dignity norm is ‘full and absolute’, there would today be no need to enumerate the full panoply of personality rights in order to resolve a case such as Qi's. These comments are of obvious importance, indicating that the NPC intended to delegate interpretive powers to judges to fill normative gaps.

Scholars have also addressed several issues of great comparative interest, including gap-filling, the function of the general clauses, and balancing. As just noted, Sun treats the Civil Code as if it contained no gaps that could not be covered by more abstract norms such as dignity, or the general clauses. Those who consider the Civil Code to have operationalised a previously ‘dormant’ text – the Constitution – have argued that judges must enforce the Code while considering Constitutional norms, including when encountering gaps. The argument is both far-reaching and controversial.Footnote ⁸⁶ The general clauses of the Chinese Code simply identify ‘public policy’ and ‘good morals’ as enforceable norms, but do not otherwise define or qualify them. In Europe – especially Germany and Italy – virtually identical general clauses in civil codes have served as ‘portals’ to allow the policy's ‘objective values’ to ‘flow in’ or ‘penetrate’ the Civil Code, especially values that anchor the nation's commitment to constitutional rights. In China, one finds scholars arguing along broadly similar lines,Footnote ⁸⁷ in the context of the impossibility to apply the Constitution directly. These arguments unabashedly treat the enforcement of the Civil Code as an indirect form of CJR, demanding much more ‘creativity’ on the part of judges.Footnote ⁸⁸ Finally, as noted, in Europe the process of constitutionalising the codes has enshrined balancing – today subsumed by the constitutional principle of proportionality – despite the fact that doing so has radically expanded the courts’ policy discretion. Balancing is required whenever the litigating parties raise arguments based on two rights, or when a right arguably conflicts with an entitlement provided by the Civil Code. Chinese scholars, too, have debating balancing,Footnote ⁸⁹ invoking Lüth Footnote ⁹⁰ (which they had begun, if less earnestly, a decade before the Civil Code was promulgated). Shi even advocates the adoption of multi-stage proportionality tests.Footnote ⁹¹ The arguments of this third group would require courts to go far beyond the more banal practice of merely noting that their decisions conform to the Constitution.

Interpretation in the Judiciary

The repudiation of the Qi Yuling decisions by the SPC (2008) squelched a broader movement in support of CJR, but it did not stop the courts from engaging in constitutional interpretation of statutes. Sprick situated these efforts along a continuum of rising intensity and significance.Footnote ⁹² Courts might take a minimalist approach, referencing constitutional values to give symbolic weight to rulings, but not necessarily to alter their content.Footnote ⁹³ More assertively, a court might stipulate that the Constitution – conceived as a corpus of binding legal norms – informs and legitimises a ruling despite the prohibition of CJR. In a third approach, the court emphasises that the Constitution had decisively determined the meaning of the applicable law. It can therefore claim to have enforced (what are in fact) rights without thereby challenging the NPC's authority, as direct CJR would. Sprick argued that Party elites (and the SPC) tolerated these practices insofar as they were responses to legislative inaction, concluding that constitutional interpretation would decrease as more comprehensive statutes closed gaps.Footnote ⁹⁴ In any case, neither the NPC nor the SPC moved to stop judges from proclaiming the constitutionality of their rulings. Meanwhile, some Chinese scholars condemned judicial appeals to the Constitution as per se illegitimate usurpations of the legislature.Footnote ⁹⁵

It is also clear that Chinese judges are adept at harnessing the Constitution to preferred policy outcomes. In ongoing research, Du has sought to persuade his peers – and the judiciary – that (i) the courts meaningfully interpret the Constitution, and that (ii) they ought to do so in order to render more effective both legislation protections and constitutional rights.Footnote ⁹⁶ Among a range of interpretive and remedial techniques (eg, issuing ‘conforming’ interpretations), Du finds that judges are adept at ‘reading in’ and ‘reading out’ statutory provisions to ensure their compatibility with the Constitution. Two examples will suffice. The Gu v Zhou case (2008) involved the support of a child (Ms Gu) who had been conceived in the course of an extra-marital relationship between Ms Zhou and Mr Huang some 12 years earlier.Footnote ⁹⁷ Ms Gu sued Mr Zhou for child support, which Mr Zhou (who had long contested his parentage) had argued was barred under a statute of limitations provision. The presiding court held that children born out of wedlock enjoyed the same rights as those born to married parents, basing the move on Article 49 of the Constitution.Footnote ⁹⁸ The court had unambiguously determined that the right to identity based on family relations (the Constitution) required ‘reading-out’ the statute of limitations (legislation). In Jiang v Liu (2015),Footnote ⁹⁹ a truck driver who had suffered work-related injuries sued his employer for having neglected to provide a proper contract or insurance coverage, which deprived the driver of compensation. Indeed, the employer took pains to delist his company to escape liability. Article 2 of the Labour Law excluded labour relations between natural persons (covering agreements between corporations and representatives of labour), which normally would have led to the case's dismissal. The court, however, decided that, in maliciously deregistering the company, the employer had violated the driver's right to occupation. Thus, in the guise of strengthening workers’ safety, the court wrote into the statute protections offered by Article 42 of the Constitution.Footnote ¹⁰⁰ If brought today, both of these cases would be litigated under the Civil Code.

The Supreme People's Court as a Control Mechanism

The CPC conferred on the SPC its authority to issue judicial interpretations in 1955, which it enhanced in the 1980s. Viewed comparatively, it is important to recognise that the SPC is not a constitutional court, but a quasi-legislative organ of governance that manages the judicial system in the name of the CPC and NPC. That point made, it is now fully accepted that SPC Interpretations produce legal norms that impact the entire judiciary,Footnote ¹⁰¹ at least with respect to resolving questions of how the law is to be applied in concrete cases that have arisen in the courts.Footnote ¹⁰² Concurrently, the Standing Committee of the NPC holds de jure powers to resolve disputes about the meaning of justiciable law, and to clarify how that law is to interpreted in new circumstances.Footnote ¹⁰³ In practice, the respective competences of the Standing Committee and the SPC are virtually impossible to delineate, given the general legislative nature and scope of the SPC's pronouncements.Footnote ¹⁰⁴ The SPC publishes its decisions in various forms.Footnote ¹⁰⁵ Under the current system, three of these – Interpretations; Provisions; and Official Replies – directly impact the substantive content of legal norms.Footnote ¹⁰⁶ Interpretation and Provisions comprise relatively abstract interpretations: Interpretations stipulate the textual meaning of legal provisions with a view to their application in the context of litigation; while Provisions contain supplementary rules purportedly to derive from an analysis of legislative intent. The Official Replies constitute the SPC's response to concrete questions that are referred by the lower courts, usually in the context of adjudication. Each of these pronouncements binds on the courts as a whole,Footnote ¹⁰⁷ and judges are expected to treat them as sources of law in their rulings.Footnote ¹⁰⁸

These modes of control exhibit important features of abstract lawmaking, insofar as they are detachable from the facts of concrete litigation, and result in authoritative determinations of the meaning of contested legal provisions.Footnote ¹⁰⁹ Abstract lawmaking has an overtly ‘political’ complexion; its function is to enhance systemic coherence and uniformity in the absence of strong judicial review and an explicitly formulated stare decisis principle. Indeed, the SPC unabashedly uses its pronouncements to develop the law, to respond to changing circumstances, or even to promote social transformation.Footnote ¹¹⁰ The SPC seeks to maximise two interrelated objectives: its capacity (i) to manage the courts,Footnote ¹¹¹ and (ii) to enhance its own capacity to control policy outcomes, including in the sphere of constitutional law.Footnote ¹¹² Put somewhat differently, the SPC's makes law by filling legislative gaps, clarifying the scope of legislative provisions, and adjusting the meaning of legislative governance in diverse fields.Footnote ¹¹³

To date, the SPC has issued 127 judicial interpretations concerning the Civil Code (the most recent, as of 24 February 2022, interpreting aspects of the Code's General Provisions). Most of these are formally revisions of previous declarations, yet close examination reveals a great deal of substantive lawmaking within (what we have called) the Code's ‘constitutional dimensions’. In December 2020, the SPC issued the first batch of systematic Interpretations on the Civil Code's three major Books, including the Book of Marriage and Family. According to the SPC's own reading, the interpretation on the meaning of ‘maltreatment’ under Articles 1042, 1079, and 1091 of the Civil Code embraces the constitutional ‘spirit’ with regard to gender equality (Article 48, para 1 of the Constitution) and prohibition of domestic violence (Article 49, para 4 of the Constitution).Footnote ¹¹⁴ The SPC has also responded to the question of how lower courts should develop constitutional rights, given the inadequacy of existing laws on the books, and in the absence of direct CJR. Thus, in 2019, a law professor brought a civil lawsuit against a local safari park for using his likeness without his consent. The case, understood to be ‘China's first case on facial recognition’, attracted widespread public attention. Given the fundamental rights at stake, the case was selected as one of China's ‘Top 10 Constitutional Incidents of the Year’, catalysing still more heated scholarly debate concerning the Constitution's horizontal effect and the enforcement of the proportionality principle.Footnote ¹¹⁵ Following the appellant court's final judgment in the case (2021),Footnote ¹¹⁶ the SPC issued an Interpretation on issues concerning facial recognition,Footnote ¹¹⁷ which laid down detailed rules governing personality rights and their potential infringement, a month before the promulgation of the more comprehensive Personal Information Protection Law.

The SPC also manages the Guiding Cases System (GCS), in which it published approved, ‘representative’ judicial decisions in the SPC gazette. Under the GCS, which was formally established in 2010,Footnote ¹¹⁸ the SPC selects rulings deemed ‘important’, on the basis of recommendations from its internal agencies, lower courts, and civic society.Footnote ¹¹⁹ The Gazette presents Guiding Cases in the form of summaries highlighting key words, and major points of the court's reasoning, holdings, and the facts of the case. Compared with the Interpretations and other forms of pronouncement, the Guiding Cases have weaker binding force, as they are not recognised as a formal source of law or legal basis for a court's decisions.Footnote ¹²⁰ Judges are nonetheless obliged to consult the Guiding Cases when presiding over litigation, if the present case is similar enough to a Guiding Case in its facts and applicable provisions.Footnote ¹²¹ Litigants may plead elements of Guiding Cases, and judges must explain how they have responded.Footnote ¹²²

To date, the SPC has issued 31 batches of guiding cases, consisting of 178 judgments in civil, criminal, and administrative law, most of which are civil cases. The Guiding Case No 99 exemplifies how the SPC controls lower court decisions through reconstruction under the GCS.Footnote ¹²³ The dispute was triggered by a historian's article that challenged the veracity of a well-known story of revolutionary heroes who chose to commit suicide rather than surrender in wartime. One important aspect of the dispute, as the lower courts affirmed in their original decisions,Footnote ¹²⁴ is how to balance freedom of speech with conflicting rights (freedom of reputation) and interests (public interests and national sentiments). The SPC selects the case as a Guiding Case and only highlights the public dimension of the reputation of national heroes and martyrs, leaving out the issue of freedom of speech altogether.

Systematic, high quality research on the influence of the GCS on judicial decision-making on public policy does not exist,Footnote ¹²⁵ but it appears that this impact is rising.Footnote ¹²⁶ We expect that, as the adjudication of the new Civil Code increases, so will the SPC's use of the GCS to harmonise practices, as recently emphasised by one of its members.Footnote ¹²⁷ Moreover, as Sun and Fu argue, the recent ‘quota reform’ tightens the control of high courts over lower courts, and the SPC over the judiciary as a whole, which may well lead to far more attention given by judges to the Guiding Cases, as effective guidelines of decision-making.Footnote ¹²⁸

The National People's Congress and the Communist Party

The NPC exerts the legislature's formal control through two mechanisms: ex ante review of constitutionality by the Constitution and Law Committee, which takes place during the process of drafting bills; and ex post supervision of certain legal acts by the Legislative Affairs Commission of the Standing Committee of the NPC through the Recording and Review procedure, which is available once subordinate legislation has been promulgated.Footnote ¹²⁹ As mentioned, China substantially developed ‘political’ constitutional reviewFootnote ¹³⁰ following the 19th National Congress of the CPC. The suite of constitutional amendments adopted in 2018 recast the ‘Law Committee’ as the ‘Constitution and Law Committee’, which was given the new charge to ‘facilitate the implementation of the Constitution, provide constitutional interpretation, promote constitutional review, and enhance constitutional supervision,’ in addition to existing responsibilities to review pending bills.Footnote ¹³¹ Most of the Committee's 18 members possess legal backgrounds in academia or in practice; many have experience in giving legal advice to the public sectors, including a former vice president of the SPC; but none appears to be an expert in constitutional law. While scholars have assumed that the Committee would serve to build the status of the Constitution within all state organs, it has so far played only a marginal role in doing so within the NPC's legislative procedures.Footnote ¹³²

The Recording and Review procedure has proved a more effective tool, if for supervising the legal order. As presently constituted, it requires state-level regulation and provincial statutes to be filed with the Standing Committee of the NPC for ‘recording’ after their promulgation.Footnote ¹³³ The Legislative Affairs Commission (which is advised by leading legal scholars appointed to an ‘advisory board’) then ‘reviews’ these recorded acts on its own initiative, upon the request of certain state organs (including the SPC),Footnote ¹³⁴ or upon an accepted proposal from an organisation or individuals.Footnote ¹³⁵ If a constitutional issue is involved, the Commission may decide to conduct constitutional review with the Constitution and Law Committee.Footnote ¹³⁶ The Commission and the Committee reviews the impugned legislation against provisions expressly enumerated in the Constitution, as well the ‘spirit’ of its principles.Footnote ¹³⁷ Review criteria notably include a proportionality-like sequence of tests to ensure that: (i) the aim of the act under review is legitimate; (ii) the lawmaker has established a rational means-end nexus; (iii) the act restricts rights no more than is necessary to achieve the end; and (iv) the restriction infringes too much upon constitutional values as a whole (balancing).Footnote ¹³⁸ The review bodies may also consider (i) whether a review of the act's legality has taken place before the application of constitutional standards, (ii) whether a constitutionality-based interpretation of the act would suffice to avoid a finding of unconstitutionality, and (iii) whether a determination of unconstitutionality would be too severe, given the evidence.Footnote ¹³⁹ If the act under review is held to be unconstitutional, the review bodies are expected to require the maker to modify or repeal it, before the Standing Committee of the NPC made the formal repeal decision.Footnote ¹⁴⁰ This mode of review is abstract in nature: under current Recording and Review arrangements, only legislative acts can be challenged before the Standing Committee of the NPC.Footnote ¹⁴¹ This latter restriction exposes the inadequacy of the procedure when it comes to protecting an individual's rights in cases already before the courts.Footnote ¹⁴²

The Recording and Review procedure remains a work in progress. At present, review is accomplished through internal communications with little public disclosure, under no formal requirement for publishing decisions.Footnote ¹⁴³ It was only in 2017 that the Legislative Affairs Commission released its first annual report. From these, one learns that more than 1000 acts are filed each year. In its 2021 report, the Commission details, for the first time, elements of its constitutional reasoning. Among other such entries, the Commission criticised an act that required paternity testing in the course of an investigation into the size of a family, on the grounds that the parent-child relationship is protected by fundamental rights of by the Constitution, in particular, human dignity, personality, and privacy, in addition to the values of family harmony and stability.Footnote ¹⁴⁴ Liang Ying, the director of the Recording and Review Office of the Legislative Affairs Commission, predicts that ‘as the work of constitutional review under the Recording and Review progresses and deepens, constitutional interpretation will certainly [take its place] on the agenda, and constitutional implementation will be normalised’.Footnote ¹⁴⁵ From a comparative perspective, this procedure is only a distant and imperfect analog to the ‘constitutional complaint’ in Germany, Europe, and Asia, or the ‘amparo’ in Spain and Latin America, although it petitions to a legislative body for action, among many structural differences.

We have saved the most potent set of controls for last. The CPC holds and jealously guards unrivaled authority to dictate the drafting, adoption, interpretation, and application of legislation, and the ultimate power to delineate any and all boundaries within which the courts might exercise some degree of ‘relative autonomy’ from ‘politics’.Footnote ¹⁴⁶ The Party exerts control over the SPC, regularly determining the substance and timing of Interpretations and Guiding Cases.Footnote ¹⁴⁷ Recent examples concerning the Civil Code include the SPC's Interpretations on torts for environmental damageFootnote ¹⁴⁸ (the Civil Code, chapter VII ‘Liability for Environmental Pollution and Ecological Damage’, Book Seven on ‘Tort Liability’), and the Guiding Cases on biodiversity conservation,Footnote ¹⁴⁹ both of which seek to further implement the CPC's policy of ‘Ecological Civilisation Construction’.Footnote ¹⁵⁰ Party officials also preside over the NPC legislative procedure, which serves to verify the constitutionality of legislative bills, as well as the Recording and Review procedure, which serves to ensure other legislative bodies’ compliance with the policy decisions of the CPC's Central Committee.Footnote ¹⁵¹ Although it is rarely possible (or worthwhile) to analyse separately the decisions of the Party, the SPC, and the NPC,Footnote ¹⁵² the Party maintains its own specialised committees and procedural controls. The CPC's Political and Legal Affairs CommitteeFootnote ¹⁵³ is tasked with ensuring that the Party's pronouncements and policy instruments are ‘implemented correctly and uniformly’,Footnote ¹⁵⁴ including by the SPC.Footnote ¹⁵⁵ It does so primarily through the Case Coordination and Case Inspection procedure already mentioned, which it uses selectively,Footnote ¹⁵⁶ as a function of a legal dispute's relative political sensitivity.Footnote ¹⁵⁷ Finally, Party officials comprise a normal presence in the courts. Tellingly, they are fully expected to ‘instruct the responsible judge on how to handle politically sensitive or influential cases’Footnote ¹⁵⁸ – now understood as ‘those affecting social stability, the general public, and the image of the state’Footnote ¹⁵⁹ – under threat of punishment, including dismissal and criminal prosecution.