A comparative law visit to Beijing

China-EU School of Law

From Maastricht, the university where I was affiliated for many years as a professor of Dutch and European private law, I participated in the China-EU School of Law, where I gave lectures in English. During these lectures, I noticed that my Chinese students were genuinely interested in comparative law education and also, as you would expect from students, listened critically. As fascinating as I found these lectures and contacts with colleagues and students, I still felt like an outsider because I literally didn’t speak or understand a word of Chinese. This is an experience that rarely happens to me, because I usually work in an environment where a Western language is spoken. For that reason, I had already decided that if I ever returned to China, I wanted to acquire at least some basic knowledge of Chinese. Still, unexpectedly, that turned out to be necessary this year.

Learning from equations

But maybe it’s good that I first say a little more about my field. I am involved in comparing legal systems, among other things to see if we can learn something from solutions and approaches in other countries. Within this field, I focus mainly on private law, that part of the law that focuses on relationships between private persons, i.e. citizens and companies. Private law is very broad. This includes contract law and liability for unlawful acts, as well as ownership relationships and security for debts incurred such as mortgages. It is in particular the last two sub-areas, which are part of what is called ‘property law’, that I have been intensively involved in during my professorship in Maastricht. In recent years, it has been mainly from the point of view of the emerging data society.

Relationship between law and language

An important aspect of comparative law is the awareness that law and (legal) language are closely related. The jargon that I use most often in an international context is English, whereby one must realize that English law differs greatly from continental law, which does not make it any easier to explain and compare legal solutions. After all, the English legal language is the expression of English law, not of Dutch law, for example. As a result, Dutch legal concepts are sometimes difficult to translate into English and vice versa. Comparing Dutch law with Chinese law is not an easy task, partly due to the difference in language. To really understand Chinese, knowledge of the Chinese language is needed and insight into how the Chinese characters are structured, because this language does not consist of letters but characters. The conversion of this into PinYin helps with this, but this conversion in itself is in fact an interpretation of what the characters mean. In addition, the political and socio-economic background against which Chinese law functions is fundamentally different from what we see in the Netherlands. This makes comparing legal solutions more difficult, but certainly not impossible.

After my retirement in Maastricht in 2020, I had prepared myself for all kinds of interesting activities, but not that I would be involved in large comparative law projects. However, that turned out very differently.

The new Chinese Civil Code

More than a year ago, I was informally asked what I thought of the idea of commenting on the new Chinese Civil Code in comparative law. In the English-language project, experienced comparative law researchers from Europe would collaborate with younger comparative law researchers from China. I immediately thought that was a very interesting idea and in that context I am now involved in the first part of this commentary that relates to property law, where my part is limited to mortgage law. This is a very intriguing part of Chinese law, because a right of mortgage allows a bank to sell a house or apartment in order to pay a debt to the bank from the proceeds of the sale. That debt is usually created because the bank lent money to become the owner of that house or apartment. But how is that possible in an economy that functions against the background of the premise that the state owns all the means of production and therefore also the land and everything that is connected to it?

Insight for foreign lawyers

The intention is to publish a series of books in which the entire Chinese Civil Code is commented on in English by teams of European and Chinese legal comparators. The part on property law, in which I am now involved, will in all probability be published first.

The function of such a commentary is to provide legal practice with a guide on how the legal text and the official explanatory note should be applied. Attention is paid to case law in which the legal text is interpreted and to legal literature in which, for example, that case law is discussed. This commentary also discusses how certain problems are solved in foreign legal systems. In this way, an attempt is made to make Chinese law more transparent for foreign lawyers.

Enlightening discussions between peers

In order to understand each other better, the Chinese colleagues in Beijing organised a multi-day meeting, where the various European and Chinese researchers exchanged ideas with each other in an inspiring and in-depth – but above all open – way about the differences between property law in China and law in European countries. It became clear to the European researchers how it is possible that the state owns the land, while an individual citizen can still own an apartment. That possibility arises because the State grants the citizen the right to use the State’s property in order to have an apartment on it, as a result of which the citizen can be the owner of his apartment and, as a result, establish a right of mortgage on it. For example, we discussed whether a parallel can be drawn here with the Dutch leasehold, as it exists in a city like Amsterdam, for example.

Educational relaxation in conclusion

After this multi-day meeting, Chinese colleagues arranged meetings with, for example, a law firm to introduce us to legal practice. That was also extremely instructive.

For me personally, the colleagues with whom I work very closely in the project showed me around Beijing for a few days. For example, I visited the national museum – had very interesting conversations about Chinese history – and just used the metro and bus like everyone else. I was able to put my basic knowledge of Mandarin Chinese to good use. Enough not to feel completely lost during my stay in China (for which many thanks to my teachers at the language institute Regina Coeli in Vught!). I am extremely grateful to the colleagues who showed me around for their enormous patience in explaining Chinese characters and the Chinese language to me. In short, an educational and also very pleasant stay.