Marriage and Family in the Civil Code of the PRC: Outer Perspectives

Family Law and the Hybridisation of Models* Chinese family law, both in terms of formal rules and social practices, has received limited attention in comparative legal studies. However, recent devel- opments, encourage researchers to engage in the investigation. The function and structure of the family in the People’s Republic of China have changed radically over the years, hand in hand with the evolving concept of the family in society. The drafting of the new code and the inclusion of the discipline of family law within it constitute one of the milestones of such an evolution. During the codification process, marriage and family have been the subject of lively debate concerning the adhered- to family model, underlying concep- tions, systematic structure of the book, and relationships between marriage and divorce.1 The resulting Book v from this debate clearly illustrates the mul- tifaceted articulation of legal sources in this country, re- introducing many of the contaminations previously experimented within Chinese private law.2 First, a link emerges between the Chinese legal system and the Roman legal tradition, of which the very term ‘code’ is a well- known by- product. However, the peculiarities of China’s historical and cultural events have influenced the content of the code not only through Roman law, but also through numerous other elements, such as traditional Chinese law, that was long governed by cus- tom, the law of the so- called socialist countries, and the 20th century Western egal tradition.3 The presence of such heterogeneous contributions shows that China wants to address its issues by drawing on solutions from other legal sys- tems whilst stimulating interest in studies on the subject. Before delving into the analysis of Book v of the Chinese Civil Code, a pre- liminary remark is necessary. This essay aims to offer some points of compar- ative reflection on family and marriage, as regulated within the newly- formed code, starting from the English version of the text that has been circulating in the Western world since its approval.4 The existence of this linguistic limitation must be borne in mind in the analysis we are about to undertake.