China Insight (CI): You call this Civil Code a "green" civil code for it embraces the "green principle." Could you please explain what aspects of the Civil Code embrace the concept of the "green principle"?
Guo: The full text of the Civil Code contains 1,260 articles, including the General Provisions, Property Rights, Contracts, Personality Rights, Marriage and Family, Inheritance, Tort Liability, and Supplementary Provisions. There are as many as 18 articles directly related to environmental protection of resources, and the implementation of the "green principle" is mainly reflected in three aspects:
First, the idea of "green restrictions" on property rights is reflected in the property rights section, which makes it possible for coordination of property utilization activities and environmental protection goals. The second is that in the contract provisions, "green restrictions" on contract performance are stipulated, which will help reward "green" civil transaction activities and provide a civil law basis for preventing pollution and destruction of the environment. The third is to improve the environmental pollution and ecological damage liability system provisions in the tort liability section, which is helpful for the comprehensive investigation of environmental tort and environmental, ecological damage liability.
Furthermore, in the section of personal rights, the relevant provisions on general personal rights, life rights, and health rights also provide civil law protection basis for personal life and health damage that may be caused by environmental pollution and damage to individual citizens.
These regulations together establish "green" norms for civil activities and provide essential institutional support for the "green shift" of social production and consumer behavior, and the construction of ecological civilization. They are significant because they not only expand the field of the "green" concept in the legal system but also promote environmental governance system. They provide the legal principles to protect the environment, to protect pollution, and to improve enforcement and governance.
CI: Lands in China are either collectively owned by the community or state-owned. In the property rights section of the Civil Code, "green restriction" on real estate owners are mentioned several times. What are they?
Guo: Without regulations on land use, there is no environmental protection. Environmental pollution and destruction mainly occur in the process of land development and utilization of natural resources. To control environmental pollution and ecological damage from the very beginning, the owner of the land must "green restrict" the development and utilization of land and natural resources.
The property rights section in the Civil Code recognizes and expands the scope of state-owned lands in the Constitution; incorporates important environmental considerations into the use of these lands; and lays the right foundation for the distribution, management, and protection of these essential lands from the perspective of the interests of the people and the needs of the public.
Also, to reflect the real value of land and natural resources, to ensure the utilization efficiency, and to realize the sharing of benefits, the property rights section also stipulates the principle of "paid use" of natural resources, which has a fundamental role in avoiding the waste of natural resource development and utilization and internalizing environmental protection costs.
Finally, the property rights section regards compliance with environmental protection requirements as the legal use of beneficial property rights. The prerequisites for the purpose of land for construction are clearly defined. This principle reflects the need for imposing environmental protection restrictions on the use of property rights, and mandates environmental protection consideration in land use.
CI: In traditional civil law, "freedom of contract" is the basic principle. Under this principle, the essence of a contract is "autonomy of will," and what kind of contract is signed and how to perform the contract is the "freedom" of the parties, and no one can interfere. What does "green obligations" mean in reference to contract performance under the Civil Code?
Guo: Yes, people are free to make contracts. However, from the perspective of environmental law, this kind of "autonomy" may cause environmental pollution and ecological damage.
The contract provisions in the Civil Code view "avoiding waste of resources, polluting the environment and destroying the ecology" as the primary obligation to be performed correctly. in the contract, seizing the critical link of contract execution as transaction activity, and requiring all contracts to be performed to assume "green obligations" that not only reflects the green orientation of the business transactions but can also "force" the "green obligation" into the consideration of offers and commitments during the establishment of the contract, which will help "accelerate the formation of resource-saving and environmental protection" production methods and lifestyle.
For example, as mechanical engineers, we consider the environment from product design to production and maintenance. When we sign a contract to make any equipment or machinery, we know the contract is only valid if it does not hurt the environment.
CI: What if somebody violates environmental protection regulations? You call the tort liability section in the Civil Code a useful "interface" between the Civil Code and the environmental law, why?
Guo: Let's compare the Tort Liability Law implemented in 2010 with the Tort Liability Regulation section in the Civil Code: the latter stipulates a punitive compensation system for pollution and damage to the environment and stipulates the responsibility for ecological restoration and the right to claim compensation. These regulations are an effective "interface" between the Civil Code and the Environmental Law, which solves three problems:
Firstly, it corrects the defect that the Tort Liability Law only stipulates "environmental pollution tort liability" and does not provide a remedy for ecological damage tort liability. The second is to solve the loopholes in the destruction of the ecological environment without legal and specific legal responsibility. The courts can order the restoration of the ecological environment under the Civil Code. The third is to link environmental public interest litigation effectively and ecological, environmental damage compensation litigations, making ecological, environmental damage compensation litigation possible. For the first time, the law systematically regulates China's "green litigations," which provides a legal basis for the ongoing reform of the ecological environment damage compensation system.
Also, the punitive compensation system of the tort liability section is mainly aimed at those intentionally polluting the environment and destroying the ecology. Now, the malicious offenders will bear punitive damages. These multiple damages have significantly increased civil liability for malicious offenders and visibly increased the cost of violations. Perpetrators must think twice before they do something terrible to the environment.
We, the environmentalists in China, are extremely pleased to see these positive developments in the Civil Code. It has been a long journey: two generations of jurists, legislators and citizens contributed to this "green" Civil Code. We hope this is a real step in building a rule of the law society in China.
On May 28, 2020, China's 13th National People's Congress passed the long-anticipated The Civil Code of the People's Republic of China. Comprised of seven parts plus supplementary provisions, 84 chapters, and 1,260 articles, the Civil Code is the most extensive legislation in the history of the People's Republic of China, and this is the only legislation officially named a "code." The Civil Code will be implemented on Jan 1, 2021.
The Civil Code touches upon almost every dimension of civil society and is significant legislation for every individual in China. The adoption of the Civil Code is widely acclaimed as a milestone in the development of China's legal system, as the Civil Code not only codifies the fundamental rules of law on civil and commercial matters, but also strengthens the protection of citizens' personal rights and the environment. In the latter regard, the Civil Code was referred to as a "Green Civil Code."
China Insight interviewed Mr. Zhanping GUO, president and CEO of Beijing Green East Technology Development Co., Ltd. GUO is a leading mechanical engineer in China and am environmentalist. For the past decade, he has been advocating robust quality control in mechanical engineering to protect the environment. He is delighted to see the "green clauses" in the Civil Code. Following is GUO’s discussion with CI on the "green clauses" in the Civil Code.