Chinese civil law
The Chinese civil law is within the tenets of the republic’s constitution. In other words, all the provisions of the civil law’s chapter do not contravene the constitution. The law also draws a lot from the civil experiences that have been gained over the previous years. It aims to cater for the growing socialist modernization. The first chapter addresses the relationship between people and property and points out that an equal status is granted to parties involved in a civil society (Chen 163).
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In civil operations, the fundamentals of willingness, equity, restoring accrued loss and truthfulness are keenly put into consideration. The law also guarantees to protect legal persons, interests of citizens and lawful civil rights. There should be compliance within all civil operations that are carried out under the lawful provisions. Hence, state policies can be used where relevant provisions are not in place.
Civil activities should demonstrate dignity for social ethics. Therefore, issues affecting interests of the public should not be harmed. Besides, social economic order or state economic plans ought not to be interrupted at all cost.
All civil activities in China are subject to the legal provisions of the Chinese republic except in cases where the existing laws state otherwise (Chen 164).
Stateless persons and foreigners are also subject to the stipulations of the rules in place as long as they are within the boundaries of the Chinese republic.
The second chapter deals with the aspect of natural person. In the first section of the chapter, civil conduct and civil rights potentials have been outlined. As such, civil rights capacity is bestowed to all citizens. Civil obligations are also enjoyaed by citizens throughout their lifetime. Therefore, equality towards civil rights is granted to all citizens irrespective of their statuses in society.
Adults are considered to be individuals who are residents in China and have attained the age of 18 years and above. Such people are legally allowed to take part in civil activities and can also access civil conduct fully. Civil conduct and full capacity are also admissible to citizens who are at least 16 years of age (Deveaux 49). However, civil conduct capacity cannot be granted to a mentally challenged person. An agent acts on behalf of a guardian especially in cases where the concerned persons have constrained capacity in civil conduct.
When it comes to guardianship, minors can be guarded by grandparents from the maternal or paternal side if biological parents are either dead or not in a position to care for their child. Elder siblings or close relatives may play the role of guardians. When disagreements arise concerning guardianship, close relatives may be appointed by the local community to take the place of a guardian.
Guardianship duty should be fulfilled accordingly in order to safeguard the legal rights of the person being guarded. The law protects the roles and responsibilities of a guardian.
Missing Persons and Demise declarations are covered in the third section. In the event that a person has been missing for two years, any other individual who is interested in the issue may apply to declare that the respective person is lost. The application takes place in a court of law.
The last day of war is used to compute the length of time taken by a person who goes missing after war while a spouse is responsible for taking care of property of an individual who has been declared missing. In order to recover any unpaid expenses, debts or taxes, the property that belongs to the missing person is supposed to be defrayed.
General stipulations have been addressed under the chapter on legal persons. An entity that can take care of civil rights is termed as a legal person. Such an organisation should also possess civil rights potential based on legal provisions. The beginning and end of the legal person shall determine both capacity and conduct for civil rights. Some of the requirements of a legal person include being able to bear civil liability independently, bearing personal premises, organisation and name, possession of independent property, and should have been initiated lawfully.
Funded formal agency that is independent is a legal entity from the time of its initiation. However, the latter provision should be executed under the supreme law of the People’s Republic of China.
On matters related to economic association, a newly registered entity that has met all the basic legal regulations and opted to engage in economic associated is presumed to be a legal person so long as it has been properly registered by the concerned authority.
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Civil law in the United States
In the United States, a plaintiff is an entity that files the lawsuit. The latter may include an individual person, corporation or an organization.
A complaint must be filed by the complaining party before a civil law suit is initiated. Fee waiving on the side of the plaintiff is also possible under the US civil law if the latter is unable to meet the required levies (White 97). All the damages or injuries have to be explained by the complainant. Compensation for damages is allowed in this case. Other types of compensation may also be ordered by the civil law court hearing the case. For instance, in certain situations, the plaintiff’s legal rights may be declared.
In the process of preparing a civil case, litigants may be required to offer additional information to one another and also avail necessary documentations. In other words, preparation for trial often requires thorough gathering of evidence alongside the use of witness. Call witnesses should be prepared. Even in the case whereby a civil court case has already begun; any additional discovered evidence can be enjoined during the trial process. Before the trial process begins, a witness may be required to answer specific questions regarding the civil case at hand (Mo 104). A lawyer who has already taken oath of office is the only person allowed to administer questions to the witness. Nonetheless, the latter process should take place when a court reporter is present. It is the role of a court reporter to prepare all the court proceedings. Usually, the proceedings are recorded and produced in form of a transcript.
Even before the point of settling differences, litigants are usually requested by the civil law court to settle the conflict on their own. Alternative dispute resolution methods such as arbitration and mediation are encouraged by the US civil law courts. The court considers it to be better if disputes can be resolved without court proceedings or formal trials. This explains why there are many cases when litigants unanimously opt for a settlement. However, if an out-of-court settlement is not agreed upon by the litigants, a trial is scheduled.
Specific codes have been used to write a constitution. Examples include the constitutional and tax law. Legislative enactments are the binding tools used to bring litigants together. Judge-made law is not pronounced at all in civil law in the United States (Moriarty 243). However, there are instances when judges rely on past rulings to pass current trials. Moreover, decisions taken by courts have been largely influenced by legal scholarly writings.
A civil court system works separately from other courts such as those that handle administrative and constitutional matter. Provisions that have been set up by the courts are supposed to be binding since several provisions are implied in formal legal agreements. This creates minimal freedom of contract in the US civil law courts.
Legal codes are updated on a regular basis and they are also comprehensive. The codes are used to clarify matters that qualify to be forwarded to courts and the right methodology to use. In the United States, decisions delivered by judges are less instrumental in forming civil law. In this case, legal scholars and legislators have an important part to play (at the decision-making level) in civil law suits (Hawes, Lau, and Young 356).
From the above comparisons between the Chinese and United States’ civil laws, it is evident that the Chinese civil law is highly structured and comprehensive compared to the US civil law. While specific civil law provisions may differ between the two jurisdictions, the constitution still remains as the supreme law under which all other legal enactments should subscribe to. In addition, legal scholarly writings seem to have little bearing in the Chinese civil law structure.
Chen, Lei. “The Historical Development of the Civil Law Tradition in China: A Private Law Perspective.” Legal History Review, vol. 78, no. 1, 2010, pp. 159-181.
Deveaux, Chad. “Perverted Liberty: How The Supreme Court’s Limitation of the Commerce Power Undermines our Civil-Rights Laws and makes us less Free.” Capital University Law Review, vol. 41, 2013, p. 49.
Hawes, Colin, Alex Lau, and Angus Young. “Lifting the Corporate Veil in China: Statutory Vagueness, Shareholder Ignorance and Case Precedents in a Civil Law System.” Journal of Corporate Law Studies, vol. 15, no. 2, 2015, pp.341- 376.
Moriarty, Richard Briles. “And now for Something Completely Different: Are the Federal Civil Discovery Rules Moving Forward into a New Age or Shifting Backward Into a “Dark” Age?.” American Journal of Trial Advocacy, vo. 39, no. 2, 2015, pp. 227-270.
Mo, Zhang. “Codified Choice Of Law In China: Rules, Processes And Theoretic Underpinnings.” North Carolina Journal of International Law & Commercial Regulation, vol. 37, no.1, 2011, pp. 83-157.
White, Larry. “What Civil Law Attorneys Should Know about American Law: Why Does the American Constitution Work?.” Ankara Bar Review, vol. 3, no. 2, 2010, pp.97-99.