ZHU Hu*

 

Abstract: Putting the people first in human rights protection is the most distinctive feature of the outlook on human rights in contemporary China. The codification of the Civil Code of the People’s Republic of China reflects the people’s legislation for themselves, which is guided by the principle of putting the people first in its external system and internal values. Functionally, the Civil Code of the People’s Republic of China reflects the obligation of the country to protect human rights, constructs the framework relationship between the country and individual people, and perfects the mechanism for human rights protection. The continuous expansion of the types, contents, and functions of civil rights in the Civil Code of the People’s Republic of China is required by the broad scope of human rights, with an aim to realize a happy life for the people, the most important human rights, and protect people’s personal rights, property rights, and right to dignity through specific rules. The universal sharing of human rights requires the universality of the subjects of civil rights. The equal sharing of human rights requires the equality of forms of civil rights protection.Meanwhile, it further requires the substantive equality of civil rights protection. Attention is paid to protecting the rights and interests of specific groups in external and embedded ways.

 

Keywords: Civil Code of the People’s Republic of China · human rights protection · civil rights protection · outlook on human rights in contemporary China

 

When presiding over the 37th group study session of the Political Bureau of the 19th Communist Party of China Central Committee on February 25, 2022, General Secretary Xi Jinping underlined that “we must attach greater importance to respecting and protecting human rights, and adhere to the Chinese path in this cause to deliver better results.”¹ On May 29, 2020, he said the Civil Code “is of great significance in pursuing people-centered development, in protecting people’s rights and interests in accordance with the law, and in promoting human rights.”² These remarks pointed out the important connection between the Civil Code, which is intended to protect civil rights, and the protection of human rights. This paper will, from a theoretical point of view, explain why the Civil Code is significant for human rights protection. Based on the detailed connotations of the Chinese outlook on human rights in contemporary times, it will analyze how the “for the people” principle, the state’s obligation of protecting human rights, the extensive scope of human rights, the most important human right, and the equal sharing of human rights are implemented and realized in the Civil Code both in general and in specific sectors. The analysis will be made in three aspects — the foundation for human rights and the mechanism of their realization, the contents of human rights, and the subjects of human rights. 

 

 

 

General Secretary Xi Jinping said, “In promoting human rights in China, we have integrated the Marxist outlook with China’s actual conditions and traditional culture, reviewed the successful experience of our Party in respecting and protecting human rights, and learned from the outstanding achievements of other civilizations. This has enabled us to chart a course of human rights protection that follows the tide of the times and suits China’s realities.”³ His important remarks made clear that the human rights outlook of contemporary China transcends the Western liberal outlook by combining a global vision with national reality. This outlook is first and foremost reflected in our understanding of the foundation of human rights, with “for the people” or people-orientation being its most distinctive feature.

 

The modern liberal outlook on human rights of the West, which is built on West-centrism, argued either from the theological or metaphysical perspective for the necessity and universality of human rights. The way this concept was established, however, has resulted in bias and prejudice because the liberal outlook, as the outcome of Western culture, reflects only Western history. Although it has influenced the human rights practices set against foreign cultural backgrounds, it is by no means the only human rights outlook that applies everywhere. Arguing for human rights from the theological or metaphysical perspective, the liberal outlook bases its argument on something unreal which hides its historical limitations and parochialism and generates a kind of cultural exclusiveness. When the West, upholding this outlook, asks all other countries and civilizations to follow its human rights regime, it assumes political and cultural hegemonism, and attempts to erase all inconformity by force, which negates human rights.⁴ Moreover, the liberal outlook severs the concept from the practices of human rights by emphasizing their moral legitimacy and unconditionality while neglecting their conditionality. But the fact is that the practice and realization of human rights is at least equally important as the abstract concept, and moral legitimacy is different from becoming a social consensus and common practice. Marx, citing Bruno Bauer, said “the rights of man are not a gift of nature, not a legacy from past history, but the reward of the struggle against the accident of birth and against the privileges which up to now have been handed down by history from generation to generation.”⁵

 

According to the human rights outlook of contemporary China, “‘For the people’ is the distinguishing feature of the Chinese path of human rights protection. We safeguard the people’s democratic rights, stimulate their enthusiasm, initiative and creativity, and enable them to become the dominant participants in, contributors to, and beneficiaries of our progress in human rights. We have made concrete efforts to promote the well-rounded development of the individual and to achieve substantial progress in common prosperity.”⁶ “The people are the broadest and most solid foundation for comprehensive law-based governance, which must rely on and benefit the people. We must represent the people’s interests, reflect their wishes, protect their rights and interests, and improve their well-being throughout the process of law-based governance in all sectors. The ultimate goal of law-based governance is to protect people’s lawful rights and interests. We should actively respond to their new demands and expectations, and systematically study and address major concerns of the people in the domain of law-based governance. In this way, we strive to increase their sense of gain, fulfillment and security, and safeguard their wellbeing through the rule of law.”⁷ Upholding its people-oriented outlook on human rights, China responds to the people’s expectation for a better, higher-quality life, makes consistent efforts to meet their growing demand for rights in all respects, and views the expectation and demand as a fundamental part of human rights. This is in line with the Chinese culture and spirit.⁸ The Chinese outlook on human rights is not founded on the idea of individuals standing up against the state, but on the belief that individuals, as citizens, share something in common with the state. That materializes the transition from “rights in heaven” to “rights of the people.” The concept of human rights has been formed through people’s activities on earth, in reality.⁹ 

 

Such a transition has effects in many ways. First, it brings the concept and the practices of human rights together. On the one hand, “Ensuring that people can exercise their human rights to the fullest extent is a common goal of humanity. There is no best when it comes to protecting human rights, only better.”¹⁰ “It is humankind’s great dream for everyone to enjoy human rights to the fullest.”¹¹ The principle of universality demands that human rights should transcend national or geographical boundaries to become the moral aspiration and value shared by all humankind, for which humanity should forge consensus amid differences and seek harmony amid conflicts. Only by observing the universality principle can we truly respect and protect human rights on a high level, and consequently make socialism with Chinese characteristics more influential and appealing in the world. On the other hand, we must “apply the principle of universality of human rights in the context of our national conditions, propel progress in accordance with the people’s demands, and ensure that they enjoy full, extensive, genuine, concrete, and effective human rights in accordance with the law.”¹²

 

Second, it transforms the liberal, abstract Western outlook on human rights into one that is concrete, rooted in history, and based on current realities, and avoids empty talks on human rights regardless of the social and political conditions and historical and cultural traditions of a country. “Rights can never be higher than the economic structure of society and its cultural development conditioned thereby.”¹³ Due to differences in history, tradition, culture, religion, values, politics, economy, resources, and other factors, countries and regions may face different threats to human rights. When they are in different development stages, the human rights they emphasize are also different, so are their methods, approaches and models of realizing human rights. The Vienna Declaration and Programme of Action adopted at the second World Conference on Human Rights in 1993, while underlining the universality of human rights, reflected many developing countries’ view that human rights have their particularities, recognizing that the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind. “Human rights must and can only be advanced according to specific national conditions and people’s needs. Developing countries should uphold both the universality and particularity of human rights and steadily raise their level of human rights protection.”¹⁴

 

Third, it avoids reducing the universality of human rights to the universality of the human rights system, and consequently avoids turning human rights into a political and ideological tool. When designing and developing the national human rights system, we must adopt an organic and holistic approach to history and reality, theory and practice, and form and content based on national realities. It is necessary to take into consideration the traditions formed through a long history, the development path we have walked, the political experience accumulated, and political principles established, and the current demands and problems all at once. “Civilizations only vary from each other, just as human beings are different only in terms of skin color and the language used. No civilization is superior over others.”¹⁵ While upholding the universality of human rights, different cultures, traditions and values must be fully considered and respected, as no single culture can represent universal human rights for all. “To assess the myriad political systems of our world with a single yardstick, to examine our diverse political structures in monochrome, is in itself undemocratic.”¹⁶ “Democracy and human rights are the common pursuits of humanity. At the same time, the right of the people of all countries to independently choose their own development paths must be respected. The process in which the Chinese people strive to realize the Chinese Dream of national rejuvenation is essentially one of realizing social fairness and justice and constantly advancing the cause of human rights.” “In evaluating the status of human rights in a given country, one cannot apply the standards of other countries. Adopting double standards or using human rights as a political tool to interfere in the internal affairs of other countries is even more unacceptable.”¹⁷ The West’s hegemonistic mindset and attitude surrounding human rights have fundamentally deviated from what human rights truly represent and require — equality, harmony, and reason. They pose a major obstacle to advancing the global human rights governance. 

 

Guided by the value of “for the people,” the human rights outlook of contemporary China contains the goal of alignment between individual citizens and the state, and institutional safeguards have been provided to ensure that the people run the country. General Secretary Xi Jinping said, “We must remain committed to a people-centered approach, uphold the principle that all power of the state belongs to the people, and support and ensure the people’s exercise of state power through people’s congresses. We should improve democracy, create more forms of democracy, expand channels for democracy, and ensure the people’s equal right to participate in governance and in development, so as to promote a whole-process people’s democracy that is broader, fuller, and more robust.”¹⁸ The codification of the Civil Code exactly demonstrates how the people legislate for themselves on the basis of people-state alignment. It has given a strong impetus to making human rights a social consensus, and to the unity of the concept and practices thereof. The Civil Code “is in accord with the socialist nature of our country, the wishes and interests of our people, and the requirements of contemporary development. It highlights equal protection of people’s rights and interests concerning life, health, property, transactions, happiness and dignity. It carries distinctive Chinese features, guides practice, and has strong contemporary relevance.” “The implementation of the Civil Code is essential to protecting the people’s rights and interests and achieving people-centered development.”¹⁹ Developing and implementing the Civil Code is in itself a concrete action to practice the Xi Jinping Thought on the Rule of Law.²⁰ At the same time, Article 1 of the Civil Code, by stating that it is formulated for the purpose of “carrying forward the core socialist values,” guarantees its Chinese features and relevance to the times.²¹

 

In addition, the Civil Code also intensifies the connection between the protection of human rights and of civil rights in its systematic architecture with rights as the centerline. Firmly rooted in China’s social and political conditions and historical and cultural traditions, it adapts to the requirements of development and people’s expectations, transforms abstract human rights into concrete ones rooted in history and based on current realities, and continuously meets people’s growing demand for rights. Article 1 of the Civil Code makes it clear that it is formulated for the purpose of “protecting the lawful rights and interests of the persons of the civil law,” and Article 3 provides that “the personal rights, proprietary rights, and other lawful rights and interests of the persons of the civil law are protected by law and free from infringement by any organization or individual.” Article 3 was originally Article 9, but during the deliberation, there were opinions that protecting civil rights and other lawful rights and interests was the underpinning spirit of civil law that guides the whole Civil Code and specific civil and commercial laws. It was therefore moved to Article 3 to fully demonstrate the code’s purpose of putting rights in the center.²² The General Part of the Civil Code is formulated surrounding rights. It stipulates the subjects of rights, civil rights, civil juristic acts that cause the change of rights, civil liability for infringement upon others’ rights, and the time limitation on rights – a structure different from Germany’s Civil Code that’s centered on civil juristic acts. Other parts of the Civil Code are also structured around specific types of rights. They respectively stipulate real rights, rights in personam arising from contract, personality rights, relation-based rights and right to inheritance as arising from a marital and familial relationship, and tort liability as a relief. It must be noted that establishing personality rights and tort liability in separate sections highlights the protection of rights and intensifies human rights protection. Dedicating a separate section to personality rights changes the traditional practice of civil laws that personality rights are placed under the subjects of rights or the scope of tort liability — which gives more emphasis to property rather than person, and that underscores the importance of personality rights. Dedicating a separate section to tort liability is good for establishing a comprehensive relief model in which tort liability, insurance, and social relief are aligned, thus stressing the relief of rights. That’s why we say the Civil Code establishes a complete system with rights at the core.²³ On the level of inner value, the Civil Code upholds the core value of “human dignity” and manifests human rights as an underlying value. It is stated in the preamble of the Universal Declaration of Human Rights that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The International Covenant on Economic, Social and Cultural Rights recognizes in its preamble that “these rights derive from the inherent dignity of the human person.” The Vienna Declaration and Programme of Action also affirms in its preamble that “all human rights derive from the dignity and worth inherent in the human person.” This means human dignity is the value from which human rights derive and around which all human rights exist. By the same token, civil law is essentially a law of the people, which is developed with human dignity as the underlying value, tries to realize the free and all-rounded development of human beings, and reflects the fine traditional Chinese culture characterized by benevolence and love for each other. In comparison with modern civil laws, the Civil Code cements the core position of human dignity in a wide range of specific systems, covering subjects of rights, real rights, contract, tort liability, and marriage and family. That the personality rights and the tort liability are established in separate sections of the Civil Code is a structural manifestation of human dignity.²⁴

 

Some believe that the core value of the Civil Code is private autonomy or the principle of voluntariness. That the “principle of voluntariness” is provided in Article 5 of the Civil Code indicates its importance, but it is nevertheless just one of the many basic principles of civil law. Therefore, a more overarching expression is needed to present the core value of civil law, namely human dignity. Indeed, human dignity is closely related to the principle of voluntariness. It is the prerequisite for the possibility of voluntariness and the reason why subjects exist. Without human dignity, there would be no subject to exercise voluntariness in the legal sense. In turn, voluntariness helps preserve human dignity, which wouldn’t exist but for extensive individual autonomy. Yet we must be clear that voluntariness is more often applied in relation to transactions, whereas it doesn’t always apply in such areas as personality rights, marriage and family, and inheritance. For instance, Article 992 of the Civil Code states that “personality rights may not be waived, transferred, or inherited,” and Article 993, though recognizing the authorized use of personality rights, provides exceptions – such rights shall not be authorized for use if “the authorization thereof is not allowed by law or based on the nature of the right.” There are limitations on the will too. Besides, human dignity can help transform voluntariness on the surface into voluntariness in substance, as reflected in the specifications for the standard clause. That is not a negation of voluntariness, but to better realize it by compensating for the insufficiency in capacity. At last, voluntariness is a kind – but not all – of the common good. When it comes into conflict with human dignity, the latter should be prioritized. This is reflected in Article 1007 of the Civil Code, which provides that any agreement on the purchase or sale of human cells…or remains is void, and in Article 1008, which says that for participation in a clinical trial, the approval of the relevant competent authorities and the examination and approval of the ethics committee are required in accordance with the law in addition to the consent of the participants themselves. Therefore, human dignity is a more fundamental and comprehensive expression of the core value of the Civil Code, and it also better reflects the guiding role of the people orientation of human rights.

 

 

The liberal western outlook on human rights is the outcome of individuals standing against the state. It emphasizes negative liberty over positive liberty²⁵ and consequently — when it comes to the mechanisms of realizing human rights — stresses the state’s negative protection of human rights while neglecting its positive protection of the practices thereof. It deems the state as the “necessary evil” and wants to curtail its role as much as possible. However, even Western researchers regard such a human rights theory, which places too much emphasis on individuals over the state, as indiscreet and intellectually arrogant. “The Rights of Man, after all, had been defined as ‘inalienable’ because they were supposed to be independent of all governments; but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them.”²⁶ 

 

Regarding the mechanisms of realizing human rights, China, with its current human rights outlook, makes a point of combining the state’s positive protection and negative protection. In a world featuring diverse sources of power, in which there is a lot of economic power and social power apart from public political power, liberty will end up the opposite of itself should there be no public power to maintain a peaceful, stable, and just society. In this society, both negative liberty and positive liberty must be realized by and through the state, as with human rights. As a result, the state must take active measures to realize human rights by fulfilling its obligation of respecting, protecting, satisfying and promoting them.²⁷ In other words, a state first bears the obligation of negative protection, meaning it shall not infringe upon human rights. At the same time, a state also bears other obligations, including the obligation of delivery, to promote the realization of human rights by all possible and necessary means. For that purpose, it must adopt positive measures and provide material and institutional conditions to enable the citizens’ exercise of rights, so that the rights can truly evolve from a qualification on paper to practice in reality.²⁸ We must stick to the idea of shared development in domestic and global human rights governance, including making concerted efforts and sharing the benefits. “This is about the means of realizing shared development. It is through jointly contributing to development that people enjoy the benefits of inclusive development. The process of contributing together is also the process of sharing benefits. We should practice democracy, widely gather the wisdom of the people, and encourage their efforts, so that all the people participate in and dedicate themselves to shared development, and share a sense of accomplishment.”²⁹ Clearly, it’s very important to have companies, international organizations, multilateral development banks, individuals and their organizations bear the responsibility for protecting human rights too.³⁰ But the state still plays an indispensable, central role. Sovereignty and human rights are not in dichotomy but in unity — human rights are the purpose of sovereignty and are protected by it.

 

The Party and country attach great importance to, respect and protect human rights. Throughout its century-old history, the CPC has led the people in a tireless effort to realize, respect, protect and develop human rights. The revision to the Constitution in 2004 provided for “respecting and protecting human rights” in Article 33, with “respecting” reflecting the state’s obligation of negative protection and “protecting” the obligation of positive protection. Since the 18th CPC National Congress, the Party has prioritized human rights as an important aspect of national governance and achieved historical progress. All these show that the Party and the country provide both negative and positive protection of human rights. 

 

Previous discussions about human rights were usually on the public law level with little attention paid to private law. In fact, private law also bears strongly on the protection of civil rights and of human rights. The protection of civil rights ensures a secure and dignified life for the people. Functionally, the Civil Code is the basic law protecting civil rights, so its coming into force will help advance human rights protection on the legal level. The PRC’s continuous efforts to formulate the code have come side by side with the ever-intensified protection of human rights. On the legal level, China’s human rights outlook is reflected in the articles on human rights and other basic rights contained in the Constitution, the fundamental law, thus establishing the state’s obligation of protection. The Civil Code — the basic law, on the other hand, realizes the state’s obligation of protection, carries out China’s human rights outlook, and implements the spirit and principles of the Constitution through legislation. This is why it is stated in Article 1 of the Civil Code that “this Law is formulated in accordance with the Constitution.” Throughout the history of human civilization, developing such a code is always a milestone for establishing the rule of law, and a symbol of a state and a nation moving toward strength and prosperity. As a paradigm of codified sectoral laws in modern times, a Civil Code is never just a law providing for civil relations — it also carries the mission of political and social reform. The Chinese Civil Code is of great significance for ensuring that civil rights are protected, people’s livelihoods improved, businesses flourish, the government is supported by the public, and the people become more culturally advanced.³¹

 

Human rights development is an ongoing cause whose course depends on the actual conditions. General Secretary Xi Jinping underlined that “We will strengthen the legal protection of human rights and further the reform of related legal institutions. We will provide legal guarantees that cover the whole process, every link and every dimension of human rights protection, including legislation, judicature, enforcement and observance of the law, so that the people can see that justice is served in every law, every law enforcement action, and every judicial case.”³² These remarks emphasized the comprehensive system of human rights governance, and protecting civil rights via the Civil Code is a key part of “protecting human rights in accordance with the law.” The Civil Code directly relates to the rights, interests and obligations of civil subjects. Therefore, “in performing duties and exercising power, state agencies must be very clear about the scope and boundaries of their activities. Party and state agencies at all levels must respect the stipulations of the Civil Code, and must not infringe upon the lawful civil rights of any individual, including personal rights and property rights. Furthermore, relevant government agencies, supervisory offices and judicial departments must function in accordance with the law to protect civil rights from being violated and to promote order and harmony in civil relations. The effective implementation of the Civil Code is an important index for evaluating the performance of all levels of Party and state agencies in serving the people.”³³ Implementing the Civil Code involves an array of aspects, including legislation, enforcement,judicature, and popularization. Governments and agencies of all levels must take the Civil Code as a yardstick to regulate legislative, administrative, judicial and other activities, and must never violate the law in making decisions that curtail or damage the rights and interests of civil subjects or expand their obligations. On the legislative level, greater efforts should be made to “establish, revise, abolish or interpret” laws and regulations related to the Civil Code; on the enforcement and judicial level, the Civil Code’s role as a boundary marker and yardstick should be reinforced, thus raising the efficiency and security of civil rights protection. General Secretary Xi Jinping further pointed out that “those who abuse compulsory measures such as sealing, seizing and freezing property, criminalize civil disputes, and engage in selective law enforcement and biased administration of justice must be strictly held to account.”³⁴ This means that priority shall be given to civil law on many matters. Civil disputes shall be strictly differentiated from administrative violations and criminal offenses, and no administrative or criminal means shall be applied in civil economic disputes. 

 

It’s clear that the Civil Code not only concerns the relationship among civil subjects, but also establishes a framework relationship between the state and individuals regarding the protection of the latter’s rights and interests. By refining the mechanisms for realizing human rights, it is of great significance for advancing the modernization of the system and capability of human rights governance. 

 

 

 

General Secretary Xi Jinping stressed, we have “ensured that the people enjoy full, extensive, genuine, concrete and effective human rights in accordance with the law,” and that “we have protected the citizens’ personal rights, property rights, and right to dignity, their basic political rights to engage in democratic elections, consultations, decision-making, management, and oversight, and their economic, cultural, social and environmental rights.”³⁵ These important remarks represent a summary of human rights discourses at different development stages of human history. They make it clear that the purpose of protecting and developing human rights is to meet people’s expectations for a better, higher-quality life and their growing demand for rights in all respects, and that the scope of human rights is constantly expanding to make the contents completer and more extensive.³⁶ From a historical perspective, the contents of human rights have been expanding. America’s Declaration of Independence in 1776 endowed people with the right to life, liberty, and to pursue happiness; France’s Declaration of the Rights of Man and of the Citizen in 1789 stipulated the right to liberty, property, security, and to resist oppression. Article 3 of the Universal Declaration of Human Rights states “Everyone has the right to life, liberty and security of person,” along with 19 civic and political rights and 6 economic, cultural, and social rights. The concept of shared development calls for all-round sharing. “This is about the content of shared development, including economic, political, cultural, social and ecological achievements. We should safeguard the people’s rights and interests in all these respects.”³⁷ Clearly, the contents of human rights must be extensive and complete. The various human rights arising from “human dignity” are inalienable, interdependent, and interconnected. For instance, if basic political and economic rights are not guaranteed, people’s democracy cannot be realized and the rule of law would be a castle in the air. It’s safe to say that basic political and economic rights directly bear on the sound operation of the political and economic systems, within the framework of which civil rights are realized and protected. 

 

In any case, personal rights, property rights and the right to dignity are important components of human rights that respond to people’s growing demand for a better life. The protection of these civil rights provided by the Civil Code is an indispensable part of human rights protection, and the extensive and full human rights drive the incessant expansion of civil rights. The Civil Code, with rights as the center and the bedrock, establishes an all-embracing civil rights system covering property and personal rights, material and cultural rights, and rights before, in and after life. 

 

First, the categories of rights are enumerated and expanded. The Civil Code comprehensively and systematically stipulates personality rights,relation-based rights arising from a marital and familial relationship, real right, rights in personam, and the right to inheritance, relates to intellectual property rights and investment rights in specific civil laws, and makes provisions in principle for the protection of data and other virtual properties online. Moreover, by stating that “the persons of the civil law enjoy other civil-law rights and interests as provided by law” in Article 126, the Civil Code creates a relatively complete yet open rights system.³⁸ All these show that the code has presented a more colorful panorama of rights by continuously enriching their contents. 

 

Second, the specific types and contents of rights are expanded. The Civil Code adds the right of habitation under real rights, and expands the scope of security rights through “contracts with a function of security” (Article 388). The Civil Code also expands the contents of specific rights. For instance, the right to life includes life safety and dignity (Article 1002), the right to corporeal integrity includes corporeal integrity and freedom of movement (Article 1003), the right to health includes physical and mental health (Article 1004), protection of the rights to name extends to pseudonym, stage name, screen name, and abbreviation of a name (Article 1017), protection of the right to likeness covers all external images by which a person can be identified (Article 1018), and the right to privacy includes private secrets and undisturbed private life (Article 1032).

 

Last but not least, the functions of rights are expanded. Rights, as stipulated in the Civil Code, are multi-functional — they preserve human dignity, determine the ownership of things, ensure peaceful life and contented work, promote market development, improve the ecological environment, perfect the governance system and capability, and adapt to the development of the times. 

 

 

General Secretary Xi Jinping has further emphasized the need to “focus on basic human rights, primarily the rights to subsistence and development. Subsistence is the foundation of all human rights. Living a life of contentment is the ultimate human right.”³⁹ This injects new connotations into China’s human rights cause in the new era by stressing people’s contented life as the ultimate human right and pointing out the comprehensive nature of human rights — the rights to subsistence and development are the foundation, the realization of various human rights is the content, and people’s free and all-round development is the goal.⁴⁰

 

With that being the precondition, the Civil Code must protect the most basic civil rights such as personal rights, property rights, and personality rights. Life, corporeal integrity and health are the basic elements of subsistence. Hobbes took these elements merely as part of human rights:⁴¹ “the right of nature, which writers commonly call jus naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life.”⁴² Seeing property as a basic material need, Locke expanded human rights to “life, freedom and property.”⁴³ Once material needs are met, cultural needs arise, as we Chinese say “one becomes conscious of honor and shame once one is well fed and well clad.” That is how materialist values evolve into post-materialist values, and how personality rights become an important part of human rights. How the three rights — personal rights, property rights, and personality rights — are ordered reflects the dynamic evolution of what’s needed for a good life rather than being a static priority. In terms of priority, material personality rights such as life, corporeal integrity and health should be given top priority, while other personality rights should also take precedence over property rights. This is reflected in several articles of the Civil Code. “Where the parties have expressly agreed on the term of authorized use of the image, the person holding the right to likeness over the image may rescind the contract authorizing such use if with just cause” (Paragraph 2 of Article 1022); Where a person’s right to likeness comes in conflict with the right in the works of the image of such person, the right to likeness shall prevail (Paragraph 2 of Article 1019); and “Where an owner fails to pay the property management fees within the agreed period in breach of the agreement…, the property management service provider may not collect the property management fees by such means as shutting off power, water, heat, or gas” (Paragraph 3 of Article 944). All these provisions imply that personality rights come before property rights. 

 

If people’s life of contentment is the ultimate human right and the right to subsistence is the foundation of all human rights that means we must first and foremost protect human life and health. Article 3 of the Universal Declaration of Human Rights provides that “everyone has the right to life, liberty and security of person.” The Civil Code puts life and health first and protects them in every aspect. “Human life is most important. We should never pursue development at the price of people’s lives. That is a redline that should never be crossed.”⁴⁴ When the rights to life, corporeal integrity and health conflict with other rights, the other rights shall make way. The Civil Code expressly stipulates the rights to life, to corporeal integrity, and to health. It defines the right to life as life safety and dignity, the right to corporeal integrity as corporeal integrity and freedom of movement, and the right to health as physical and mental health to intensify the protection of them. In determining the civil liability an actor bears for infringing upon other’s personality rights, considerations for other factors are especially excluded if the rights infringed upon are to life, to corporeal integrity, or to health (Article 998). Regarding specific provisions, the Civil Code enhances safeguards in key areas. It makes special provisions on the principles of determining accountability and punitive damages for areas where safety issues are highly possible and frequent, including consumption of goods, use of a motor vehicle, eco-environment, domesticated animal, and high-rise littering, so as to ensure safety in every aspect of daily life. It enhances safeguards in key industries and makes special provisions on the subjects of liability and the principles of determining accountability for high-risk industries prone to accidents, including medical service, highly dangerous work, and construction. It enhances safeguards at key locations and makes special provisions on safety obligations for crowded locations with high public security risks, including schools, hotels, shopping malls, banks, bus/train stations, airports, sports venues, and entertainment venues.⁴⁵

 

The Civil Code enhances life and health safeguards during emergencies too, including but not limited to having a temporary guardian when a ward is unprotected (Paragraph 3 of Article 31), making arrangements as a temporary measure to provide necessary life care for the ward when a guardian is temporarily unable to perform his duties owing to an emergency such as an unexpected incident (Paragraph 4 of Article 34), extending legally obligated rescue at times of peril (Article 1005), and taking immediate and corresponding medical measures to treat a terminally ill patient upon the approval of the person in charge of the medical institution or an authorized person in charge when the consent of the patient or his close relatives cannot be obtained (Article 1220). The Civil Code also enhances diversified relief measures by combining social insurance, commercial insurance, relief funds and tort liability, and, in the case of high-rise littering, introduces as the last relief measure the liability of indemnity borne by the users of the building that may have caused the damages. To punish evil deeds and encourage good deeds, the Civil Code also indemnifies persons that cause harm when seeking to avoid peril in response to an emergency, acting out of justifiable defense or for a just cause, and voluntarily engaging in rescuing another person in an emergency, and introduces rules such as Negotiorum Gestio. These strengthen the safeguards for life and health. 

 

People’s contented life being the ultimate human right requires the protection of property rights. “For the middle-income group, property rights are a primary source of confidence in society. Only by protecting property rights and keeping wealth secure can we ensure that they have peace of mind and constancy of purpose, and make sure their expectations are stable.”⁴⁶ “What all types of market entities expect most is equal legal protection. For involved parties, unjust law enforcement or judicial activity can mean, in less serious cases, harm to their rights or interests, or, in worse cases, the loss of all their family’s property…We must implement equal protection in all aspects of legislation, law enforcement, justice administration, and observance of the law and give equal protection to various market entities’ property rights and legal rights and interests in accordance with the law.”⁴⁷ The Civil Code has enlarged the scope of property to include a diversity of forms, including intangible property and tangible property, physical property and virtual property, living property and productive property. It clarifies the ownership of property, establishes the priority order when property rights may conflict, protects the property rights of all types of civil subjects, and specifies detailed rules such as that income generated by properties co-owned by all unit owners shall belong to the unit owners. The Civil Code adjusts the use value and value of properties to promote the full use thereof and help increase their value. By combining “socialist system” with “market economy,” it explores more ways to utilize properties under public ownership, so as to separate the right of ownership, right of contracting, and right of management over farmland. It advances property trade, makes it clear that legally concluded contracts are protected by law, outlines the framework of contracts for online deals, facilitates the realization of right in personam through security and contract preservation, and diversifies the types of typical contracts. It also intensifies property protection by setting rigorous conditions and procedures for the expropriation and requisition of property. 

 

People’s contented life being the ultimate human right requires protection of personality rights, which directly relates to human dignity. To further protect human rights in accordance with the request for “protecting people’s personal rights, property rights, and personality rights” made by the 19th CPC National Congress and the second plenary session of the 19th CPC Central Committee and implement the requirements of the Constitution, the Civil Code has a separate section on personality rights. This separate part on personality rights concentrates related provisions that used to be scattered among various laws, elaborates on what was not detailed enough, and clarifies what urgently needs to be regulated in social life but hasn’t been. It also includes regulations, rules and judicial interpretations on human rights that have proved effective in practice but haven’t been codified into law to make them more systemic and consistent with the times. Having a separate part on personality rights and giving them detailed provisions is of great importance in that it helps civil subjects understand their personality rights and proclaim these rights in the form of law. The Civil Code has enlarged the types of personality rights. In addition to expanding the scope of protection of existing rights, as stated above, it has added the protection of personal information and voice to align with the Personal Information Protection Law. Paragraph 2 of Article 990 provides that “In addition to the personality rights provided in the preceding paragraph, a natural person enjoys other personality rights and interests arising from personal liberty and human dignity.” This responds to the need for protecting new types of personality rights and interests arising from social development, avoids the limitation of enumerating personality rights one by one, ensures the basic protection of personality rights and interests while keeping the system open for further development. The Civil Code has defined the contents of personality rights. It stipulates in great depth the contents, boundary and actor’s obligations corresponding to each personality right, and dynamically and systematically coordinates the relationships between personality right protection and news coverage, public supervision, freedom of creation, shared use of data, and other values. It specifies how to balance the authorized use of personality rights and interests with human dignity, lays down detailed rules on personality rights in such areas as human body donation, clinical experiment on the human body, medical and scientific research related to human genes and embryos, and falsification, and deletes the “for-profit” element as a consideration for determining whether the right to likeness is infringed upon. At last, the Civil Code strengthens the prevention of infringement upon and the relief of personality rights. It clearly stipulates the right to claim personality rights and to rectify or cancel the claim and introduces the injunction system that can quickly protect personality rights, thus preventing infringement thereupon. It establishes the right to claim compensation for pain and suffering arising from the infringement upon personality rights, exempts the right to certain claims from the limitation period, details the way in which the liability shall be borne such as elimination of adverse effects, rehabilitation of reputation, or extension of apologies, and extends the provisions on personality right protection to the protection of relation-based rights. 

 

 

 

According to the human rights outlook of contemporary China, “all our people enjoy human rights equally,” “we have adopted the vision of people-centered development, upholding the principle that development is for the people and by the people, and the people share the benefits,” and “we enable the people to become the dominant participants in, contributors to, and beneficiaries of our progress in human rights.”⁴⁸ To enjoy human rights equally means that the beneficiaries are all the people. “This is about the coverage of shared development. Shared development means the fruits of development are shared by all the people, each enjoying his or her share. They are not to be shared by a few or by a special group.”⁴⁹ These statements specify that all people are entitled to human rights, which are not privileges exclusive to a few or a special group.

 

When the concept of human rights was initiated, it was the “rights of man” both in America’s Declaration of Independence and in France’s Declaration of the Rights of Man and of the Citizen. Literally, the term limits the subjects of human rights to “men”; legally and factually, it further limits the subjects to propertied white males while excluding females, blacks, Indigenous people, and the people of colonies and dependencies. However, in modern times, human rights are rights inherent to all human beings — the universality of the subjects of human rights has become common sense. “Promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” is stated in Article 1 of the UN Charter. Article 2 of the Universal Declaration of Human Rights further stipulates that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other status.” Here “all human beings” take place of “all men,” highlighting the universality of the subjects of human rights. 

 

Regarding the subjects of civil rights, Chapter II of the former General Principles of the Civil Law is titled “Citizen (Natural Person),” whereas Paragraph 1 of Article 33 of the Constitution says “All persons holding the nationality of the People’s Republic of China are citizens of the People’s Republic of China.” To expand the scope of application, Paragraph 2 of Article 8 of the General Principles of the Civil Law stipulates that “The stipulations of this Law as regards citizens shall apply to foreigners and stateless persons within the People’s Republic of China, except as otherwise stipulated by law.” Later civil laws such as the Law of Succession and the Guarantee Law all adopted the concept of citizens. Paragraph 1 of Article 2 of the Contract Law in 1999 used the term “natural persons,” which is carried on by the Civil Code as the term places more emphasis on the universality of subjects than “citizen (natural person).” At the same time, Article 13 of the Civil Code stipulates that “A natural person shall, from the time of birth until the time of death, have the capacity for enjoying civil-law rights, and may enjoy civil-law rights and assume civil-law duties in accordance with law.” Prior to the advent of modern times, not every natural person had the capacity for enjoying civil rights, but now the Civil Code affirms that capacity, which is inalienable and inextinguishable from birth to death, for all natural persons, confirming their status as civil subjects and fully demonstrating the code’s modernity. Moreover, the Civil Code has extended the protection of civil rights to before birth and after death. It stipulates that “A fetus is deemed as having the capacity for enjoying civil-law rights in estate succession, acceptance of gifts, and other situations where protection of a fetus’ interests is involved” (Article 16), and that “When partitioning an estate, a share shall be reserved for a fetus” (Article 1155). According to Article 1141, if a will made by one spouse doesn’t reserve a portion of an estate for a fetus, that part of the will is void.⁵⁰ Regarding the deceased, Article 994 provides for the protection of the personality interests of the deceased, and Article 185 provides for the protection of the personality interests of a hero or a martyr.

 

There are different opinions regarding whether legal persons and unincorporated organizations shall be considered subjects of human rights.⁵¹ As far as civil rights protection is concerned, the Civil Code admits that legal persons and unincorporated organizations are subjects of civil rights — there is no question about that when it comes to property right protection. But whether they shall enjoy personality rights is still being debated. The Civil Code goes the middle way considering the close relationship between personality rights and human dignity. On the one hand, in view of the provisions set forth in the former General Principles of the Civil Law and the current needs, the Civil Code provides for the right to entity name, to reputation, and to honor enjoyed by a legal person or an unincorporated organization in Paragraph 2 of Article 110. On the other hand, it differentiates the personality rights enjoyed by a natural person from those enjoyed by a legal person or an unincorporated organization. When giving incomplete enumerations of a natural person’s personality rights, the Civil Code, in Paragraph 2 of Article 110, deletes the term “and other rights” that appeared in Paragraph 2 of Article 110 of the former General Provisions of the Civil Law of the People’s Republic of China and enumerates in full the personality rights enjoyed by a legal person or an unincorporated organization. Paragraph 2 of Article 990 gives an open scope to personality rights enjoyed by a natural person, but that doesn’t apply to a legal person or an unincorporated organization. That is to say, there is a limit to the personality rights and interests enjoyed by a legal person or an unincorporated organization,⁵² and they cannot claim compensation for mental pain and suffering even if their personality rights are infringed upon.

 

Human rights should not only be enjoyed by all, but also equally, namely the equal rights of all social members to participate in governance and in development must be fully guaranteed. “Under the principle that everyone is equal before the law, we have strengthened human rights protection throughout the process of legislation, judicature, enforcement and observation of the law. We have accelerated improvement of the legal system featuring equal rights, equal opportunities, and fair rules for all.”⁵³ This first of all implies formal equality of human rights. Article 1 of the Universal Declaration of Human Rights states that “All human beings are born free and equal in dignity and rights.” The Declaration also summarizes the painful lessons learned from fascism, colonial suppression, and violation and deprivation of human rights, and avoids inequality in the enjoyment of human rights arising from such factors as race, sex, profession and property. To implement such formal equality in civil rights protection, the Civil Code provides that “all persons of the civil law are equal in legal status when conducting civil activities,” “all natural persons are equal in their capacity for enjoying civil-law rights,” and “the State protects the equal legal status and development rights of all market participants” (Article 4, Article 14, and Paragraph 3 of Article 206). Their capacity for performing civil juristic acts and legal status are all equal without any discrimination with regard to origin, identity, profession, sex, age, ethnic group, race, or other factors. Regarding marriage, family and succession, the Civil Code affirms the principle of equality between men and women in marriage (Paragraph 2 of Article 1041 and Article 1055) and between children born out of or in wedlock (Article 1071 & 1127). It also affirms that the rights of civil subjects are equally protected by law (Articles 113 & 207).

 

 

Regarding the human rights culture, the West’s liberal outlook emphasizes individualism and the rational and self-serving atomic individuals while neglecting the value of community. Even western scholars themselves criticized the idea that in liberalism, I am the free and “independent self”; that “from the standpoint of individualism, I am what I myself choose to be. I can always, if I wish to, put in question what are taken to be the merely contingent social features of my existence.”⁵⁴ In response to this, Marx pointed out that “It is a question of the liberty of man as an isolated monad, withdrawn into himself… The right of man to liberty is based not on the association of man with man, but on the separation of man from man. It is the right of this separation, the right of the restricted individual, withdrawn into himself.” “None of the so-called rights of man, therefore, go beyond egoistic man, beyond man as a member of civil society — that is, an individual withdrawn into himself, into the confines of his private interests and private caprice, and separated from the community. In the rights of man, he is far from being conceived as a species-being; on the contrary, species-life itself, society, appears as a framework external to the individuals, as a restriction of their original independence. The sole bond holding them together is natural necessity, need and private interest, the preservation of their property and their egoistic selves.”⁵⁵ It is exactly this individualism that historically limited human rights to propertied white males in the West while turning a blind eye to other subjects. What’s more, the formal equality of men led to substantive inequality. “This equal right is an unequal right for unequal labor. It recognizes no class differences, because everyone is only a worker like everyone else; but it tacitly recognizes unequal individual endowment, and thus productive capacity, as a natural privilege. It is, therefore, a right of inequality, in its content, like every right.”⁵⁶ Consequently, not enough attention was paid to economic, cultural, social and environmental rights, collective human rights, or development rights either. 

 

The human rights outlook of contemporary China, by putting traditional Chinese culture and Western liberal outlook under the umbrella of the Marxist outlook, makes a point of avoiding individualism. Marx criticized individualism that was contained in the Western liberal outlook on human rights, asserting that the ultimate goal of liberating humanity should be the free and all-round development of every individual, and every individual’s free development is the precondition for the free development of all individuals. Therefore, instead of contradicting human rights, socialism can actually better protect and develop them. Traditional Chinese culture, on the other hand, emphasizes the people as the “foundation of a state.” Here the “people” are integral to the community, have irreducible social nature, and are “one of us.” “When Fan Chi asked what benevolence means, Confucius said it means loving the people”; we should “treat other’s kin and children as our own”⁵⁷ — these bits and pieces of wisdom from Chinese classics show that benevolence is reciprocal and not exercised from an individualistic perspective. Admittedly, arising from traditional Chinese culture are both good and bad definitions of the society,⁵⁸ but neither version is individualistic. Even Western scholars have admitted that the human rights culture could originate in the communal consciousness of other cultures than the individualistic tradition and natural rights theory of the West.⁵⁹ By integrating all these human rights cultures, the Chinese human rights outlook forges the consensus of “harmony without uniformity” based on consultation and inclusiveness, and forms an inclusive and open cultural system of human rights. 

 

Such inclusiveness and openness allow the Chinese human rights outlook to expand and uplift the perception of human rights. From the initial emphasis on personal rights alone to more attention being paid to collective rights, to the right to sustainable development, and to the rights of all to build a community with a shared future for mankind, the concept of human rights has been continuously enriched to become a comprehensive and multi-dimensional subject.⁶⁰ Moreover, with the Chinese outlook on human rights, we can observe individuals in a community, thus seeing them as real persons of flesh and blood rather than abstract notions, and realize that “formal equality” may lead to substantive inequality due to every individual’s different identities and social roles. This will remind us to attach more importance to protecting the human rights of specific groups such as women, children, the elderly, and people with disabilities. 

 

This means that the equal enjoyment of human rights requires substantive equality. We must recognize and respect the special requirements for human rights by different subjects amid various historical and cultural traditions and social structures, step up the equal protection and special assistance for specific groups, and make sure all shall enjoy the development fruits equally. “We must protect the rights and interests of specific groups such as women, children, the elderly, and people with disabilities.”⁶¹ Civil laws in modern times tend to stress formal equality based on abstract personality without paying much heed to people’s differences in negotiating capability and property distribution, nor giving much care to specific groups. To realize substantive equality in human rights, the Civil Code cares about the concrete rather than abstract people and lays down provisions to protect the all-round development of all. Article 128 provides that “where there are laws particularly providing for the protection of the civil-law rights of the, the elderly, the disabled, women, or the consumers, such provisions shall be followed.” This connects the Civil Code with a number of special laws containing provisions stressing substantive equality, including the Law on the Protection of Rights and Interests of Women, Law on the Protection of Minors, Law on the Protection of the Rights and Interests of the Elderly, Law on the Protection of Disabled Persons, and Law on the Protection of Consumer Rights and Interests.

 

The Civil Code also makes many provisions of its own to protect the rights and interests of specific groups. Paragraph 3 of Article 1041 provides that in marital and familial relations, “the lawful rights and interests of women, minors, the elderly, and persons with disabilities are protected.” Regarding the protection of women’s rights and interests, the Civil Code, considering that women usually stand at a disadvantage in marital and familial relations, particularly emphasizes the equal rights between husband and wife in a variety of aspects (equal rights, by mutual consent, to become a member of the other’s family, to use their own surname and given name, of personal freedom, over minor children, to meet daily needs, to inherit each other’s estates, and to dispose of community property, the equal duty to support each other, etc.) and the protection of women’s property rights in familial relations (Article 1050, 1056-1062, 1126). In particular, “a husband may not file for divorce during his wife’s pregnancy, within one year after his wife delivers, or within six months after termination of her pregnancy” (Article 1082), and one of the principles on the disposal of community property upon divorce is favoring the rights and interests of the wife, including those arising from the contractual management of land based on the household (Article 1087). At the same time, the right to, upon divorce, request for compensation, appropriate assistance and claims stipulated by the Civil Code (Article 1088, 1090, 1091) more often than not protects the women’s rights and interests. Regarding women’s reproductive right, the Interpretation (I) of the Supreme People’s Court on the Application of the “Marriage and Family” section of the Civil Code of the People’s Republic of China (Article 23) stipulates that “where the husband claims damages on the ground that his wife violates his reproductive right by terminating a pregnancy without his consent, the people’s court shall not support such a claim.” The Civil Code also protects women’s personality rights. Considering that sexual harassment is mostly targeted at women, it particularly stipulates the tort liability of sexual harassment (Article 1010). If women are subject to domestic violence, the Anti-domestic Violence Law, Law on the Protection of Rights and Interests of Women, and provisions in the Civil Code on the protection of rights to life, corporeal integrity and health shall all apply. Moreover, the practice of domestic violence or even abuse and abandonment constitutes the ground for allowing divorce. These provisions are conducive to consistently improving the environment for women’s development, and facilitating their equal exercise of the rights, in accordance with the law, to participate in economic and social development and share the development fruits. 

 

The Civil Code also makes numerous provisions for protecting children’s rights and interests. First, it defines the capacity for performing civil juristic acts. Minors usually have no or limited capacity for performing civil juristic acts, and their civil juristic acts are either void or with effects to be determined. However, to avoid excessive interference in the free development of minors’ personality, the Civil Code stipulates that “a minor aged 16 or above whose main source of support is the income from his own labor is deemed as a person with full capacity for performing civil juristic acts,” and that the civil juristic act performed by a minor with limited capacity for performing civil juristic acts that are appropriate to his age and intelligence is effective. Regarding guardianship, the Civil Code sets down the overall principle that “guardianship by family plays the main role, with social guardianship as a supplement and state guardianship as the bottom line,” while respecting the true will of the ward. It stipulates that the performance of the duty of the guardian shall be in the best interests of the ward while respecting the ward’s true will, and provides for the disqualification and reinstatement of the guardian to enforce its performance of duty for the ward. Moreover, the series of provisions related to adoption have strengthened the protection of the rights and interests of minors. For instance, the adoption of an orphan, a minor with disabilities, or a minor in a children’s welfare institution whose natural parents cannot be traced may be exempted from many restrictions on adoption (Paragraph 2 of Article 1100), and the most important condition that should be met by an adopter is the capability of protecting the adoptee (Article 1098). Regarding the protection of children’s personality rights and interests, the Civil Code stipulates that “the limitation period for a minor to bring a sexual molestation claim against the offender begins from the date when the minor reaches the age of 18” (Article 191), “trafficking minors in the name of adoption is prohibited” (Paragraph 2 of Article 1044), and that personal information of minors under the age of 14 are considered sensitive information, for which special rules of processing shall apply (Article 1035, Article 28-32 of Personal Information Protection Law). It also specifies the liability to be borne by an educational institution for personal injury suffered by minors. In marriage and family, the Civil Code highlights the duty of raising minors, exempts the claim for payment of child support from the limitation period, and upholds the principle that the determination of custody over children and the disposal of property upon divorce shall be in the best interests of the minor children. Thus, the Civil Code gives priority to children, protects their right to subsistence, development, protection and participation, and promotes their healthy and well-rounded development. 

 

Regarding the protection of the rights and interests of the elderly, the Civil Code stipulates that “an adult with full capacity for performing civil juristic acts may…appoint in writing a guardian for himself” (Article 33), comprehensively intensifies the duty of supporting the elderly following the philosophy that “filial piety is the root of all virtues,” and exempts the claim for support for the elderly from the limitation period. It protects the elderly’s right to succession and encourages support for the elderly through this provision. For instance, “widowed daughters-in-law or sons-in-law who have made predominant contributions in supporting their parents-in-law shall, in relationship to their parents-in-law, be regarded as successors first in order” (Article 1129), “when distributing an estate, a successor who has made predominant contributions in supporting the now decedent may be given a larger share, while a successor who had the ability and was in a position to support the now decedent but failed to fulfill the duty of support shall be given no or a smaller share” (Paragraph 3 & 4 of Article 1130), and “children shall not interfere with their parents’ divorce, remarriage, or their marital life thereafter” (Article 1069). All these provisions enhance the protection of the elderly’s rights and interests and make sure “our elderly citizens have the care and support they need to feel happy and secure.”⁶²

 

Regarding the protection of the rights and interests of people with disabilities, the Civil Code, in addition to protection related to the capacity for performing civil juristic acts, especially stipulates that “where a person is disabled as a result of an infringement by another person, compensation shall also include the costs of auxiliary equipment and disability compensation” (Article 1179), and guarantees the travel of people with disabilities through the contractual obligation of carriers engaged in public transport (Article 810). These provisions enable people with disabilities to equally participate in social development and merge into society, strengthen support for those with serious disabilities, and ensure they also share the development fruits. 

 

 

Promoting the development of human rights has become a consensus of human society in today’s world, and respecting and protecting human rights has been elevated to a height never reached before. It is not only the basic requirement of the Constitution, but also the basic responsibility of the country and the society. Only by respecting and protecting human rights can we truly build a community with a shared future for mankind. Studies of civil laws must be based on China’s practices of developing human rights, and must be creative, systemic and professional to showcase the absorption of fine traditions, national character, and features of the time. When conducting the studies, we should promote the mingling of subjects on human rights and civil laws, and broaden the boundary at both ends to boost the evolution from general ideas to disciplines to the academic system and then to the discourse system. We must think about how to diversify the ways of protecting civil rights as the development of digital technology, other high technologies, and the market has expanded their scope, and analyze in great detail more functional, flexible and practical theories relating to the development of technologies and the times. It is our mission to regulate and guide high-tech development with rights, and establish more efficient and secure mechanisms of civil rights protection with equal emphasis on prevention and relief, so as to push the cause of human rights forward and tell China’s human rights stories well from the perspective of civil rights protection. 

 

(Translated by XIANG Na)

 

* ZHU Hu ( 朱虎 ), Researcher at the National Research Center of Civil and Commercial Law of Renmin University of China; Professor and Doctoral Supervisor at Renmin University of China Law School. This paper is an accomplishment under the Scientific Research Fund Program of Renmin University of China (Project Approval No. 22XNQT12).

 

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34. Xi Jinping, “Creating a Positive Rule of Law Environment for the Party and the Country’s Work,” (February 25, 2019), in Xi Jinping: The Law-based Governance of China (Beijing: Central Party Literature Press, 2020), 254-255. 

 

35. Xi Jinping, “Steadfastly Follow the Chinese Path of Human Rights Development,” (February 25, 2022), People’s Daily, February 27, 2022, 1.

 

36. Regarding the development of the categories of human rights, see Karel Vasak, Categories of Human Rights, translated by Zhang Liping and Cheng Chunming, in Archives for Legal Philosophy and Sociology of Law (Rev.4) Zheng Yongliu, ed. (Beijing: China University of Political Science and Law Press, 2001), 462-474.

 

37. Xi Jinping, “Studying and Understanding the Concept of Innovative, Coordinated, Green, Open and Shared Development,” 96-97.

 

38. Xu Xianming, “The Civil Code Should Fully Reflect ‘Respect for and Protection of Human Rights’,” The People’s Congress of China 14 (2016).

 

39. Xi Jinping, “Steadfastly Follow the Chinese Path of Human Rights Development,” (February 25, 2022), People’s Daily, February 27, 2022, 1.

 

40. Lu Guangjin, “Human Rights in A Historical Perspective: China’s Path and Contributions,” Red Flag Manuscript 1 (2021).

 

41. It must be noted that in the context of civil law, personal rights include personality rights and rights based on marital and familial relationships, while in the context of human rights, personal rights usually refer to life, personal freedom and safety, etc., which are called the right to life and personal rights in the Human Rights Action Plan of China (2021-2025).

 

42. Thomas Hobbes, Leviathan, translated by Li Sifu and Li Tingbi (Beijing: The Commercial Press, 1985), 97. 

 

43. John Locke, The Second Treatise on Government, translated by Ye Qifang and Qu Junong (Beijing: The Commercial Press, 1964), 53.

 

44. Xi Jinping, “Instructions on Safe Production,” (June 6, 2013), People’s Daily, June 8, 2013.

 

45. Huang Wenyi, “The Civil Code and the Modernization of Social Governance”.

 

46. Xi Jinping, “Speech at the 13th Meeting of the Central Leading Group for Financial and Economic Affairs,”(May 16, 2016), in Xi Jinping on Respecting and Protecting Human Rights, compiled by the Institute of Party History and Literature of CPC Central Committee (Beijing: Central Party Literature Press, 2021), 94.

 

47. Xi Jinping, “Creating a Positive Rule of Law Environment for the Party and the Country’s Work,” (February 25, 2019), in Xi Jinping: The Law-based Governance of China (Beijing: Central Party Literature Press, 2020), 254.

 

48. Xi Jinping, “Steadfastly Follow the Chinese Path of Human Rights Development,” (February 25, 2022), People’s Daily, February 27, 2022, 1.

 

49. Xi Jinping, “Studying and Understanding the Concept of Innovative, Coordinated, Green, Open and Shared Development,” 96-97.

 

50. See Instructive Cases by the Supreme People’s Court – No.50: Li X and Guo X Yang Sue Guo X He and Tong X X over Succession of Estate.

 

51. Du Qiangqiang, “On the Principal Status of Legal Persons Regarding Basic Rights,” The Jurist 2 (2009); Qu Xiangfei, “Constitutional Rights of American Business Entities,” Global Law Review 4 (2011).

 

52. Zhu Hu, “How Do Personality Rights Become Civil Rights?” Law Review 5 (2021).

 

53. Xi Jinping, “Steadfastly Follow the Chinese Path of Human Rights Development,” (February 25, 2022), People’s Daily, February 27, 2022, 1.

 

54. Alasdair Chalmers Macintyre, After Virtue, translated by Gong Qun, Dai Yangyi et al. (Beijing: China Social Sciences Press, 1997), 278.

 

55. Works of Marx and Engels, vol.1 (Beijing: People’s Publishing House, 2009), 40-42.

 

56. Selected Works of Marx and Engels, Vol.3 (Beijing: People’s Publishing House, 2012), 364.

 

57. The Analects of Confucius, The Book of Rites. 

 

58. The bad definition comes from Xunzi, who, according to the homonymous book Xunzi, said: people are born with desires, which, when left unsatisfied, give rise to pursuit. Pursuit without boundary or limit leads to competition, which then leaves the country in chaos and want. Wise emperors, detesting the chaos, established rites and rituals to regulate desires and allow for pursuits as such that desires shall not concentrate on materials alone, nor shall materials be used simply to satisfy desires. That’s the origin of rites. The good definition comes from Confucius, who, according to The Analects, said, people who respect their parents and love their brothers rarely offend the superiors, and those who detest offending superiors never rebel. People of virtue hold fast to this fundamental principle, based on which there emerges benevolence and the Way. Respecting parents and loving brothers – that must be the cornerstone of benevolence and the Way.

 

59. John Rawls, The Law of Peoples: with The Idea of Public Reason Revisited, translated by Zhang Xiaohui et al. (Changchun: Jilin People’s Press, 2002), 72 and 84.

 

60. Lu Guangjin, “Human Rights in A Historical Perspective: China’s Path and Contributions,” Red Flag Manuscript 1 (2021).

 

61. Xi Jinping, “Steadfastly Follow the Chinese Path of Human Rights Development,” (February 25, 2022), People’s Daily, February 27, 2022, 1.

 

62. Xi Jinping, “Speech at the gathering to celebrate the 2019 Spring Festival,” (February 3, 2019), People’s Daily, February 4, 2019.