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Importance Of New PRC Tort Liability Law

On December 26, 2009 the 12th session of the Standing Committee of the Eleventh National People’s Congress has adopted the final draft of the Tort Liability Law [1] . As a result, as of July 1, 2010 China has now a specific piece of legislation to govern tort liability. The Tort Law has been prepared and discussed for nearly a decade and its implementation represents the completion of the Chinese Civil Code. From now on, the legal system will be effectively responsible for the definition and protection of the rights of ordinary citizens.

The new Tort Law officially aims at “protecting the lawful rights and interests of civil law parties, explicitly defining tort liability, preventing and punishing torts, and promoting social harmony and stability". [2] It generally stipulates the liability subjects, methods of assuming and waiving liability and then respectively lists eight special tort liabilities based on the above general principles. Divided into 12 chapters, the 92-provision law deals with liabilities arising from a range of circumstances and covers subject matter that increasingly captures domestic headlines in China. These include, among others: work-related injuries, product liability, liability for medical malpractice, environmental pollution, traffic accidents, liability for harm caused by animals and mental distress as well as violations of privacy or reputation on the Internet.

“Civil rights and interests" protected by this Law include the rights to life, health, name, reputation, honour, self image, privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right to use a trademark, the right to discovery, equities, succession, and other personal and property rights and interests. [3] 

Moreover, the new Tort Law assumes another important function in that it further reinforces the unification of other tort-related provisions, which have been, for a long time, scattered around various laws such as the Law on Protection of Consumer Rights and Interests, the Product Quality Law and the Environmental Protection Law. [4] 

Whether or not this tort reform in China is necessarily a positive development or not is debatable. Immediately after being passed the Tort Law has been heavily criticised and has received little positive comment. While the critics have chiefly focused on the area of private law and the immediate consequences of the recent codification process, the author of this essay will argue for a different approach. Looking at the area of public, rather than private, law and considering the long-term effects of the codification exercise, the author will point to the real importance of the new Tort Liability Law. She will argue that, while the new Tort Code may indeed be of little significance from a private law perspective, it has the potential to exert an important influence on the Chinese public law landscape.

The argument is divided into three parts. The article begins with a brief outline of the concept of tort law as well as an examination of its historical evolution in China. Part II then takes a closer look at the main arguments put forward by the critics of the recent codification exercise while Part III, at last, sets out, what the author of this paper conceives to be, the real importance of the new Tort Law.

Part I

Tort Law in China

Before we move on to the debate on the significance of the tort reform, it is crucial to first briefly consider the concept of tort law and trace its development in China. This is important not merely for the sake of integrity. Rather, an understanding of the general nature of tort law and its utility, as well as the position that existed in China prior to the introduction of the new Tort Law, will be helpful in better comprehending the various arguments raised for and against the recent codification exercise.

The Concept of Tort

"Tort" literally means "wrong" in Latin. Hence, tort law is a body of law that allows private persons to receive compensation from those who have wrongfully caused them specific forms of harm or injury. Generally speaking, a tort system will define what constitutes a legal injury, establish under what circumstances a tortfeasor may be held liable for the damage he has caused and determine how compensation is to be awarded. [5] 

From a moral point of view, ‘tort law represents our respect for and responsibility towards our fellow human being, as individuals and as a society’. [6] It has also an important role in shaping societies, as it promotes certain forms of behaviour while deterring others. [7] Moreover, the law of torts plays also a significant role in a modern economy. Dangerous and reckless conduct is discouraged by economic incentives (the argument that a safer environment leads to an increase in efficiency by minimizing injuries, damage to property or lost labour time) and the threat of money damages. [8] As a general observation, it can be said that in modern civil societies, tortious protection is no longer a privilege but a necessity.

The Evolution of Tort Law in China

While the new Tort Law is indeed a completely novel piece of legislation, it does not introduce the concept of torts into the Chinese legal framework. The truth is that tort litigation has already dominated China's legal system for many years. The People’s Republic of China can boast over 40 different statutes concerned with tort law and a total of one million tort actions initiated in 2008. [9] 

According to professor Ye Lin [10] , the origins of China's tort system can be traced back as far as to the Qin (221-206 B.C.) and Han (206 B.C.-201 A.D.) Dynasties. Moreover, it appears that provisions regarding compensation for tortious acts have existed already in the ancient Chinese society as there was already at that time a specific word (chang) that had essentially the same meaning as the modern word for restitution and compensation (peichang). [11] 

This tradition of providing tortious protection has continued up to modern times and, rather curiously, during the period from 1911 to 1949 has been actually secured by two separate legal systems – those of the Kuomintang Government and the Chinese Communist Party.

In the PRC itself, tort law has been initially governed both by the first Constitution of the People's Republic of China (1954) and a series of laws and regulations promulgated by the state. It was only during the Cultural Revolution (1966-1976) that this entire system of protection has been suspended. At that time, when virtually all laws have been trampled under foot, all existing protection of rights has been removed and people were generally precluded from enforcing laws. Under these conditions, the Chinese tort system ceased to exist.

The tort system in China has only been re-established in 1987 when the General Principles of the Civil Law of the People's Republic of China came officially into force. When passed, the General Principles have been intended only to provide an general framework for more detailed laws to be adopted subsequently. However, as a more complete civil code has not been promptly promulgated, the General Principles have continued to form the basis of tort law in China for a long time. [12] 

Eventually, over the years, the General Principles have been supplemented by various other legal instruments directly or indirectly dealing with tort liability. The National People's Congress, the State Council, and the Supreme People's Court issued a range of new laws [13] , rules [14] , and case examples [15] addressing issues relating to personal injury tort law and filling existing gaps in law. Together, these new laws were intended to establish a framework for a genuine tortious liability system in China. [16] 

While China had, by that time, developed a complex system of tort protection, the truth was that it was far from perfect. Because personal injury has been mostly dealt with under the umbrella of criminal and administrative law, it was always left to the local authorities to pursue wrongdoers in the name of the injured party. [17] Having no personal right to sue, the individual was forced to rely on whatever grievance procedures were provided by political and administrative authorities. When these decided not to act, the affected person was simply left with no power to remedy his harm. And for many years, that sad truth was that enforcement has been continuously hampered by local protectionism and corruption. [18] 

Fortunately, in 1997 a discussion of the need to revise the basic Civil Code of China has begun. After five years, in December 2002, the Legislative Affairs Commission on the National People’s Congress has finally released its first working draft for public discussion. The basic parameters of tort liability have been included in Chapter 8 of the draft. The real discussion on tort reform has been, however, significantly delayed, inter alia, by the protracted discussions regarding the proposed changes in the law of property. Yet, once the second draft has been published on December 21, 2008 it has soon been followed by a third draft and already after a year, on December 26, 2009 the Standing Committee of the National People’s Congress has adopted the fourth and final draft of the Tort Code.

Under a new Tort Code the regime will be, arguably, structurally less susceptible to the above mentioned problems. It will be now in the hands of the affected party to decide whether or not to bring a case. This will significantly reduce, if not eliminate, the opportunity for the various authorities to quash the matter even before the case gets to court. At first sight then, it might appear that the introduction of the new Tort Law should be hailed as a great success.

Part II

Criticism of the Tort Liability Law

Interestingly, however, the new Tort Liability Law has received a rather chilly welcome. Some commentators have not only ascribed little significance to the recent codification exercise but have actually pointed to its potential harmful consequences and argued that in the longer run it may actually prove counter-productive.

The new Tort Code has come under attack on mainly two grounds: a) its content, and hence the importance from a private law perspective, as well as b) its ideological background, that is, the true motive behind its introduction and the role awarded to it by the Chinese leadership. These various claims will now be explored in turn.


Having acquainted themselves with the new Code, many scholars have come to the following conclusion: ‘The […]Tort Code contains little that is new and even less that is interesting.’ [19] 

As it has been described in the previous part of the essay, China already had a very complex and broad system of tort law. And when these existing laws, regulation and practices have been juxtaposed with the new piece of legislation, many commentators have noticed that little, if nothing, has been added to the system already in place.

Only a few examples suffice to show that there is, indeed, much truth in these arguments:

Article 22 of the Tort Liability Law recognizes the right to emotional damages. While this may seem to be a major issue, the truth is that the China's Supreme Court has granted this right already in 2001. [20] 

Section 8 (Articles 65—68) of the Code provides for liability for environmental pollution. This, however, seems hardy revolutionary. Equivalent obligations are already provided for in Article 124 of the China's Basic Principles of Civil Law and the various pollution control laws, such as the Law on Prevention and Control of Water Pollution, the Law on Prevention and Control of Air Pollution or the Law on Prevention and Control of Pollution from Environmental Noise.

In short, it seems that if anything, that new law has actually only repeated, in fragmentary form, what was already in place.

Others went even further in their criticism and have submitted that, far from not bringing about any changes, the introduction of new Tort Code may, potentially, have serious harmful consequences. To justify their claim, they have first pointed to the over 2,500 pages long treatise on Chinese tort law written by Yang Lixin and then to the only 25 pages long Tort Liability Law. From this, they have argued that by reducing the existing laws into a considerably shortened form, there is a risk that the new Code will decrease the importance of tort law in practice and hence reduce, even further, the amount of protection awarded in China to private rights.

Ultimately the argument has been made that China already has a comprehensive system of tort laws and hence there is no place or need for a new piece of legislation. Yet, as it will be seen in the next part of the paper, this argument should be rejected as it is based on wrong assumptions and entirely misguided. It fails to understand the true motives behind and purposes of conducting a codification exercise.

Ideological background

Another line of attack has been based not so much on the substance of the new law but has focused on the ideology and motives behind its introduction. The argument has appeared once scholars have compared the codification of tort law with another recent codification exercise. Commentators have argued that when one considers the Tort Liability Law alongside the new Property Law, the reality looks rather bleak. [21] 

First of all, they have pointed out, the Property Law has been examined and approved by the National People’s Congress itself whereas the Tort Liability Law has only been dealt with by the Standing Committee. Moreover, the legislative process in the case of the Tort Code has been significantly shorter. It took the Chinese legislature over 17 years to complete its legislative work on the Property Law. On the other hand, in the case of the Tort Liability Law, the legislative process has really commenced only in 2008 and was already brought to an end after one year, when the Fourth Draft has been adopted by the Standing Committee on 26 December 2009. [22] 

For these reasons, it seems that the codification of Tort Law has been conducted at a lightning speed and has not received a serious treatment from the Party. It appears therefore, so the argument goes, that the Chinese leadership must have had its own reasons to award the codification of Tort Law such a low level of attention.

Following this way of reasoning, tort law expert Zhang Bao has argued that we should be more careful in welcoming the new Tort Code as the Chinese leadership has not adopted it with honest motives in mind. From his point of view, it appears that there were serious populist tendencies in the drafting process. Far from wishing to bestow upon citizens new rights or promote social harmony, a full speed legislation has been carried out in order to achieve the legislature’s aim to create a “socialist legal system with Chinese characteristics by 2010" – an overall target set at the Fifteenth National Party Congress.

In other words, China’s legislature has introduced the Tort Liability Law not for its people or the rule of law, but in order to complete a political task.

Additionally, other scholars have made a much stronger ideology argument and went as far as to speculate that the Chinese leadership has introduced the Tort Liability Law in an attempt to better and easier control the masses. [23] 

Again, this line of argument will be challenged by the author and come under scrutiny in the next part of the essay.

Part III

The True Importance of the Tort Code

In the previous part we have explored some of the powerful arguments presented by the critics of the new Tort Liability Law. However, as it will be seen in this part, these can be easily defeated and even turned into arguments actually supporting the Code. While from a private law perspective the new Code may appear indeed rather unsatisfactory, the author will argue in this part that it may have actually very important consequences in the area of public law.

The Importance of Codification

The previous section has explored how critics have argued that the recent codification exercise has been a pointless venture and that China does not need a new law to regulate tort liability. With the 2,500 pages long tort law treatise by Yang Lixin, as well as a range of laws, rules and case examples issued by the National People's Congress, the State Council, and the Supreme People's Court, there is already a sound system of tortious protection in China. Claims have been made that a Tort Liability Law of just over 90 articles will surely not be in a position to bring any change, and, if anything, may actually limit the protection already granted.

While this position is indeed difficult to be challenged by a tort law lawyer, it is much more prone to criticism when looked at from a public law perspective. Focusing on the codification exercise itself rather than the substantive provisions of the new Tort Code, a number of arguments come to the support of the Tort Liability Law.

As a general point, it is first important to realise that new codes rarely purport to replace existing laws and introduce completely new systems. Rather, they are ‘intended to bring some order to an unwieldy system and to resolve certain critical technical legal issues that had remained unclear or in dispute before their adoption’. [24] Hence, the main purpose of the codification exercise in China was exactly to turn these over 2,500 pages of laws and legal decisions into 90, easily accessible and intelligible provisions. Chinese tort law has been a mess of practices and ad-hoc decisions that needed to be systematized and codified.

The amount of both provisions and sources of tort law has not only created difficulties for the judges or the legal profession as a whole. From the point of view of an average Chinese person, it has not only been difficult to navigate around the confusing web of tortious provisions but it was often impossible to even have any real knowledge of the rights he was entitled to. A clear and short Tort Law not only introduces order into the system but also brings law closer to the citizens. And this, arguably, will have a potential to promote both China’s legal and constitutional development .

Citizen Empowerment

Despite the enormous amount of tort cases brought in China, the truth remains that tortious issues continue to be, for the most part, settled behind the scenes. For many years informal dispute resolution and government-directed compensation schemes have been the preferred method for solving private disputes. This unsatisfactory practice has been upheld and further supported by the local governments which preferred to quickly settle claims and give compensation rather than go to court. [25] 

The injured citizen himself had little choice. The only thing he could do was to accept whatever he was offered. Having no real knowledge of tort law and being unable to navigate through the complex web of provisions, he was unaware of his rights and entitlements and hence in no position to challenge the assessments of powerful firms or local governments. Arguably, it is exactly the recent codification exercise that may soon change this lamentable position.

On itself, codification is a process of bringing together different pieces of legislation within some given area into comprehensive and systematic statements of law. As a result, the process of finding the relevant law is simplified and the law itself becomes clearer and more accessible. From the point of view of an average citizen, this is of utmost importance. Being presented with a piece of legislation they can themselves understand, without having the need to refer to lawyers or other authorities, it is possible that people in China will become more willing to assert their rights and hence take a more active part in shaping China’s legal landscape. Not only by bringing cases to court but actually taking part in the legislative process by submitting their own comments and suggestions as well as pushing for further reforms.

It is true that for the time being the public involvement in the codification exercise has been rather limited. When seeking public opinion on the new law, the NPC Standing Committee has only received 3,468 submissions. Considering the over 1.3 billion population in China, the response has been indeed weak and unsatisfactory. Despite this, the new Tort Code was, in the end, able to prove that much power rests in citizen action and that even an average Chinese person has the potential to greatly influence the laws in China. This could be observed in a number of situations, when the Draft Code has been considerably revised in the wake of a series of controversial personal rights infringement cases [26] :

The question of joint liability of developers and construction companies in relation to the safety of their buildings has only been addressed following the Lotus Riverside case. When on June 27, 2009 a 13-floor building collapsed at the Lotus Riverside residential complex in Shanghai, killing a worker, the attention of the public opinion has been captured to such extent that a further amendment of the draft could not be avoided.

Similarly, the provisions on compensation for harm from defective products have been greatly altered when a dairy company (Sanlu Group) was found to have adulterated its infant formula milk powder with melamine, an industrial chemical, leaving at least six infants dead and about 300,000 others suffering kidney and other problems.

Also in response to medical disputes, the final draft has reiterated the provision stating that medical staff should not conduct "unnecessary tests" on patients against clinical criteria. This has been done in spite of the previous recommendations to delete this provision as it was too hard to define "unnecessary".

These changes introduced to the final version of the Tort Liability Law have clearly shown that court judgements and public opinion can play important roles in the legislative process. Arguably, this mere awareness of citizen’s rights and power to influence laws through court judgements has the potential to generate a sense of citizen empowerment.

The recent reform has brought law closer to the people. It has shown them that the law is there for them to use and that they enjoy certain important rights that the law will protect. Being now provided with a code they can more easily understand, it is possible that the people in China will, in the future, be more willing to interfere in legal matters and fight for their rights.

Without a doubt, at first, this new assertiveness will manifest itself in a greater willingness to make claims against fellow citizens. However, it is argued that once having realised that other citizens owe them certain important duties, Chinese people may increasingly demand their own government to award them the same level of respect and protection. And this, in turn, would create a momentum for far more significant and deeper reform in the future.

It is possible that, at some point, Chinese citizens will exert pressure on the party and government to make these new rights more meaningful in practice and thereby establishing a foothold for developing a more extensive rights protection in the future. Therefore, what has perhaps been initially conceived of by China’s leadership as a top-down exercise in social management may soon turn into a process that is markedly bottom-up .

A parallel can be drawn here to the constitutional impact of the famous Sun Zhigang incident. [27] The case was not only important in that it has led to the repeal of the challenged administrative detention called “custody and repatriation". More significantly, it had a broader influence on China’s constitutional development by promoting constitutional consciousness and empowering citizen activists. No sooner has the case come to an end than new challenges have been brought before the Chinese courts.

There exists already a trend towards "rights consciousness" in China and the adoption and promotion of the Tort Law will accelerate it. Chinese citizens are becoming ever more willing to defend their rights in court and the enactment of the Tort Liability Law will serve to enhance public awareness of citizens' rights and obligations. And so, as citizens have a greater awareness of their rights, more cases will be brought before courts. This will not only allow lawyers to file cases with broader, constitutional development goals in mind (as it was the case in the Sun Zhigang incident). Additionally, by shifting the centre of gravity towards the courts, this will potentially result in important changes to the role and position of the courts and judiciary.

A new role for the courts

At this point it is important to first appreciate the importance between the appointment of judges in civil and common law systems. Typically a lawyer in a common law system would be first required to have decades of legal experience before being able to become a judge. On the contrary, in a civil law system, law students often become judges straight after graduation from university with just a four year bachelor’s degree and short training. Their knowledge of law is still considerably limited. For this reason, creating a system whereby the multiplicity of practices, provisions and ad-hoc decisions is systematized and codified in a readily accessible way is highly important.

Moreover, it is true that in Beijing or Shanghai there is no shortage of senior judges and lawyers that have probably read all 2,500 pages of the above mentioned treatise. However, for example in the case of rural Hunan, the number of judges and lawyers that have done so to make a decision is a lot smaller. Hence, if it is possible to distil everything into 25 pages with another 100 pages of commentary, then a judge in rural Hunan is provided with something he can read, understand and then use to reach a decision that is similar to a finding of someone who has read all 2500 pages of a tort law treatise.

The creation of this kind of system is exactly one of the main points of codification. One of the reasons why the new Tort Law is so important is that it brings everything into one place – so that a judge can look at one law rather than forty. [28] 

Moreover, it is argued that once being provided with a code they can easily understand and are further called to interpret, the judges will become more assertive and hence less willing to blindly rely on the assessment and arguments made by the government and local authorities. Becoming less deferential, it is possible that the courts will eventually claim for themselves a new, enhanced role in the Chinese constitutional framework.

Firstly, one should note that the Chinese courts have already for a longer time played an important role in the development of the Chinese constitution by providing a forum for expression of public and academic opinion. ‘For this reason, in China […] the courts despite their well-known constitutional infirmities have paradoxically become major vehicles for expression of political reform.’ [29] 

Becoming more assertive against the government and more active in dealing with constitutional matters, the courts can further strengthen this important role.

Secondly, there is another way in which the courts may win for themselves more power and significance in the Chinese legal landscape.

At this point it is important to realise that the new Tort Code is just a simple collection of basic tort principles described in broad terms. As such, judicial interpretation is needed in order to fully detail the application of the law and provide interpretative guidance. [30] This can be observed on the example of the concept of punitive damages. [31] The new Tort Liability Law clearly provides for these. However, rather than specifying the exact level of such damages or setting up a detailed scheme for their calculation, the legislators have left this to the judge’s own assessment.

This creates an important area of manoeuvrability for the judges and leaves much room for future judicial interpretation and discretion. And where the court is invited to interpret, room is created for a more adventurous approach to the Code and a further development of rights protection in China.

Of course, the judges in China (as in any other civil law system) are, per se, not entitled to create new laws. However, they are always able to provide for a greater protection by skilfully interpreting relevant provisions of the Code. [32] Choosing to be more pro-active in rights development it is possible that the judges will spell out broader protections by creatively drawing parallels to rights already bestowed upon citizens in the Code.

And it is exactly by taking this approach that the courts have the power to assert for themselves a new role in the constitutional framework of China. Becoming more assertive towards the party and the government as well as being more willing to protect the rights of the citizen, they can become important players in the area of rights protection in China.

An example can be here taken from the European Court of Justice(ECJ). The courts creative “purposive" approach to the interpretation of the European Treaties has resulted in an impressive proliferation of new principles and rights, well beyond those expressly granted by the Member States. [33] And where in the case of the ECJ this has often required the court to stretch the concept of “state" [34] , there is no reason why the Chinese courts should not adopt a broad interpretation of the meaning of a “private party" when interpreting provisions of the new Tort Law. Or, even more boldly, assert that since the National People’s Congress has recognised that private citizens owe certain rights to each other, it must have intended express its own respect for these rights.

Of course, it is possible that the courts will not accept this invitation and will choose to be rigid in their application of the Code and only allow for as much protection as is expressly provided for in the new law. Therefore, it remains yet to be seen how the Chinese courts will apply the Tort Liability Law, being either expansive or limited in its interpretation. Depending on their choice, it is possible that, in future, the new Tort Law will be regarded as one of the key laws within China's legal framework of rights protection.

Rights discourse in China

Far from merely becoming a further tool with which rights are championed in China, the new Tort Liability Act may also play an important role in further shaping the way in which human rights are approached and argued.

In the past, and still to a great extent even today, human rights activists have perceived the Chinese leadership as their ultimate enemy rather than a partner. They maintained a litany of grievances against the Chinese government and have continuously accused it of violating and restricting, what they believed to be, the fundamental rights of every human being. Not only direct accusations, but also public campaigns, protests and various other attempts have been made to put pressure on the leadership. Generally, human rights in the PRC were, and remain, a matter of dispute between the Chinese government and other countries and NGOs.

However, it appears that a new trend has emerged and that the human rights discourse in China has recently entered a new phase. This new approach has been aptly described by Xu Zhiyong, one of the legal reformers actively involved in the previously mentioned Sun Zhigang incident [35] :

‘I have respect for those who raised human rights issues in the past. But now we hope to work in a constructive way within the space afforded by the legal system. Concrete but gradual change – that is what most Chinese people want’. [36] 

It is not difficult to see, keeping the earlier observations in mind, how the new Tort Code can further contribute to the development of this novel approach. Ensuring first that the rights enshrined in the Code are meaningful in practice, citizens, reformers and legal practitioners may, in the future, be able to not only argue for greater rights protection as between private parties but also for a greater respect for human rights from the Chinese leadership. Referring to actual incidents that generate media coverage and social discussion and then relying on laws introduced by the Chinese leadership, human rights activists will be able to cloak their reform arguments in legal and constitutional legitimacy. Rather than challenging the legitimacy of the regime as a whole (the approach that has been taken up by human rights activists for so many decades), this new approach would allow reformers to cast their claims as consistent with leadership objectives.

And so, over time, they might succeed in achieving modest but meaningful reform that they could build on in the future. Rather than introducing human rights forcefully into China and relying blindly on Western rhetoric, they may succeed in securing an incremental growth of human rights which will be more respectful of the Chinese tradition and history as well as compatible with Party ideology.

Market economy with Chinese characteristics

The last important consequence of the recent codification exercise that will be discussed in this paper does no longer focus on the idea of rights but refers directly to the ideological foundations of the Chinese state.

China is governed by a Communist Party that aspires to build "socialism with Chinese characteristics". [37] And while socialism is a key component of the structure of its constitutionalism, it has recently been, however, significantly overshadowed by the PRC's drive towards economic development.

The reform and opening-up policies pursued after Mao Zedong’s death were successful in that they have greatly expanded private enterprise and personal freedom. Yet, at the same time, these reforms have also increased economic insecurity and further expanded the divide between rich and poor in China. The gradually reduced support provided by the State coupled with economic dislocation and continuing government corruption have fuelled popular dissatisfaction with the Chinese leadership. government. Protests over local government seizure of farmland for development or the inadequate social security system have become common in recent years.

In short, the recent laws and reforms introduced by the leadership (for example the Property Law) has been more capitalistic than socialist in nature.

In order the re-introduce the ‘socialism’ element into the Chinese-style market economy, the PRC leadership under Hu Jintao has made it a priority to address and mitigate the negative effects of economic development. Hu's policy, intended to build a "harmonious society" (hexie shehui), seeks to address the worsening social tensions without substantially affecting economic growth. [38] In order to protect the less well-off and increase the social support for them, the government has so far sought to, among other goals, improve access to health care and education, increase rural incomes and labour protections. [39] 

With this background in mind, the recent tort reform seems to a perfect continuation of this policy and Hu Jintao's emphasis on protecting the vulnerable members of the society. By increasing protection for consumers and workers it clearly falls within the goals of the “harmonious society" policy. And while it helps to re-introduce socialism into the framework, it does not, at the same time, jeopardize the Party’s attempts to build a vibrant market economy. On the contrary, it may stimulate further growth as a clear exposition of operating laws provides for more investor confidence.

Empty Rhetoric

At last, a comment must be made on the “ideological" argument raised by the critics. As it has been shown in the previous part of the essay, many commentators, in China and outside, have claimed that the Chinese leadership has not been honest in introducing the new Tort Law. They have argued that we should be suspicious of the recent tort reform, as there is much party rhetoric behind it and it has not been carried out with a real desire to bring about changes. Rather than for people or the rule of law, China’s leadership has introduced the Tort Liability Law in order to serve their ulterior motives.

As to what actual intentions have underlined the leadership’s decision to carry out a reform of the Chinese tort law, the author, of course, has no way of knowing. However, what can be said is that even if only intended to merely complete a political task, the simple fact of creating an accessible and intelligible code has clearly a potential, whether or not intended by the party, to empower the citizenry, encourage the judiciary to become more assertive and influence the rights discourse in China.

And while the codification exercise may have indeed been only carried out to achieve political aims or, as it has also been suggested, to easier control the masses, this does not mean that the new Tort Law cannot assume for itself a role the Chinese leadership has not expected it to take. This way, the tort reform may create a momentum for change and act as a catalyst for further, more significant, reform. And it is exactly from this perspective that the true motives of the leadership become entirely irrelevant.

While it remains yet to be seen how the Chinese people and courts will apply this new Tort Law, in theory, it has a great potential to promote rights protection and the rule of law in China even further.


How far the new Tort Liability Law will be significant in China and exert an influence on its legal system is hard to tell. Quite recently, when considering the recent tort reform, one commentator has expressed the view that: ‘Another piece has fallen into place in China's legal jigsaw, and its significance will be felt all the way from Politburo to the man on the street’. [40] However, similar, optimistic views have rarely been shared. Rather, as it has been shown in this paper, the general approach has been that of suspicion and keeping distance. It seems that little faith has been put in this recent codification exercise.

Yet, in spite of all these negative comments, the author of this paper has tried to argue for a different approach. Rather than considering the short term consequences, we should focus on the long-term significance of the new Tort Law. Rather than to look to the domain of private law, we should focus on the influences the new tort legislation will exert in the area of public law. While the codification exercise might, indeed, appear to be rushed through and the Tort Liability Law itself limited in its scope when compared to, for example, the Property Law, the creation of an easily accessible and intelligible piece of legislation may, in the longer run, prove to generate important consequences.

The Tort Liability Law does not represent a brand new provision in the Chinese tortious protection system. As it has been explored in Part I of this essay, many cases were already regulated by various existing laws, regulations and practices. However, the main aim of the new Tort Law is not to create a new set of rules but rather to put together an ordered and unified legal code that regulates all these cases.

This should make the law more transparent to individuals, enable an easier interpretation of laws by courts and encourage a broader protection of individual rights. Additionally, it would help China take a further step in the path towards the protection of individual rights and creation of a truly “socialist market economy". [41] 

Of course, these are ambitious goals for tort law in China. It is certain that China has still a long way to go and is nowhere near the optimistic vision described by the author of this essay. And while it is true that all these changes will not take place overnight, this does not change the fact that there is much to be said about the importance and potential of the recent codification exercise. This are exactly all these small, gradual reforms that will in the end, together, step by step, remould the legal and political landscape in China. Instead of a big revolution transforming China in one day, cases like the Sun Zhigang incident or legal changes like the tort law reform, will slowly, but steadily influence in what direction China will go. Evolution, instead of a revolution, will be the way forward.

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