August 16, 2006
The China Law Center Holds Conference on the Drafting of China’s Tort Law
The China Law Center sponsored the “China-U.S. Tort Law Workshop” on July 20-21 in Beijing. The workshop was held in cooperation with the Legislative Affairs Commission (LAC) of the National People’s Congress, which is the legislative office in charge of drafting a comprehensive new civil code for China. The workshop facilitated an active conversation between members of the LAC and U.S. tort law experts as the Chinese government begins to address the more controversial aspects of tort law reform.
As China has shifted from a largely state-run economy to a more marketized one, civil law in general and tort law in particular has played a growing role in ordering relationships between private individuals, and between private actors and the state. China restarted the civil codification process in 1998, producing a draft civil code in December 2002. After some internal debate, the government decided to follow a step-by-step legislative process, in which laws are researched, revised, and ratified individually, rather than attempting to legislate all areas of the civil code at the same time. The LAC has set a goal of finishing the entire civil code by 2010. In early 2006, the LAC turned its attention to the tort law and invited Yale Law School’s China Law Center to help improve the draft.
“The creation of China’s fist civil code since 1949 is a massive undertaking, and the tort law is an important part of that project,” said Paul Gewirtz, director of the China Law Center. “We wanted to give the Chinese legislators a chance to talk through the policy choices behind some most complex aspects of tort law. We hope that the exchange will lead to a fuller, more comprehensive final product.”
The Chinese participants included both civil law experts from within the LAC and Chinese academic experts on tort law. From the LAC, both the director of the Civil Law Department, Yao Hong, and the vice-director, Yang Minglun, attended, as well as members of the LAC’s General Office and Research Department. A number of professors from China’s top law schools, all of whom are actively engaged in the LAC’s drafting effort, also participated in the conference.
Gewirtz led a delegation of top U.S. tort law experts to the workshop. The expert delegation included Kenneth Abraham '70, professor at the University of Virginia Law School and the author of The Forms and Functions of Tort Law, one of the most widely-used textbooks on tort law; Stanford University Law School Professor Robert Rabin, who has published extensively in the areas of torts and public health, including the textbook Tort Law and Alternatives, 7th edition (2001) as well as the books Torts Stories (2003) and Regulating Tobacco (2001); and Deborah Greenspan, a partner at the law firm Dickstein Shapiro Morin & Oshinsky, and the former deputy special master of the September 11 Victim Compensation Fund.
The workshop discussion addressed nine different subjects: standards for determining causation, compensation standards, joint acts, self-help, tort liability for environmental pollution, the duty to protect public safety, tort responsibility of schools, automobile accidents, and medical malpractice. The diversity of subjects addressed was indicative of the broad scope of reform envisaged by the Chinese government. “We wanted to give our Chinese colleagues as much information as possible as they get back to work on the draft law,” Gewirtz said. “The range of questions posed shows that they are really taking a hard look at all aspects of tort law.”
The conference closed with a pledge by both sides to remain in touch as the Chinese government moves forward with the legislative process. The LAC hopes to have a new draft tort law ready for the March 2007 meeting of the National People’s Congress.