Shruti Jargad, Research Intern, ICS
2020 has been a big year for Chinese politics, and not just because of COVID-19 and China’s great power entanglements. After four unsuccessful attempts in 1950s and 1960s, 1979 and in early 2000s, the National People’s Congress’ Standing Committee (NPCSC), on May 28 adopted the Civil Code with 2879 votes in favour. Before this code, several standalone laws like the 1989 Marriage Law, 1985 Inheritance Law, 1995 Security law, etc. were enacted.
A civil code is a codification of private laws that regulate property and personal rights including laws on contracts, property, marriage and torts. It is a highly consequential document as it affects the lives of the general population in the most direct and intimate manner. No wonder then it led to intense public engagement with 900,000 public comments during the process. Further as a fist such code, it shows the maturity of China’s legal system. It would also reduce inconsistencies between standalone civil statutes. Finally, it is being lauded as an achievement for the Party which has brought China’s institutions to this level of sophistication and promulgated a set of laws uniquely Chinese in nature.
While much of the code is based on previous laws and pertinent judicial interpretation, there are two provisions that are of special relevance to women in China. These are – Part on Personality Rights and Part on Marriages and Family. While the first sails on the headwinds of the MeToo movement in China, the latter is a throwback to state manipulation in private lives.
The Part on Personality rights which generated a fair amount of controversy among legal scholars does not have corresponding standalone statute but builds on the 1986 General Principles of Civil Law. It consists of 5 sets of rights including rights to life, body and health (Chapter II). It protects the “security and dignity” of individuals’ lives (article 1002), individuals’ “physical and psychological integrity”, and their freedom of action; right to health protects individuals “physical and psychological health”
Importantly, it creates a cause of action for sexual harassment, requiring employers (including government agencies, businesses and schools) to adopt measures to prevent, accept complaints of, and investigate workplace harassment (art 1010) Further the code clarifies that written text or images alone, in addition to spoken words or conduct, may also amount to sexual harassment.
This is indeed a big moment for the nascent MeToo movement in China, currently at a critical point with the ongoing case against prominent television host Zhu Jun on the charges of harassing an intern at the state broad caster CCTV. Youth, especially University students have come out in support of the victim, known as Xianzi on internet platforms as the case is being heard in the Haidian District Court in Beijing. Inspired by the MeToo movement in the West in 2018, Xianzi has posted her experience on WeChat account, which became viral and generated intense debate on platforms like Weibo. However, women are still reluctant to come forward and it is rare for cases like this to make it to court. Further, in the conservative society, women often end up shouldering the blame.
Before the new provisions, Chinese law had long prohibited sexual harassment, but its legislation was generally confusing about what behaviour constituted harassment, and the absence of a clear liability framework had sometimes left victims and employers uncertain about whether a legal violation had occurred making it difficult for victims to report harassment and employers to respond to it. Further, BBC reports that in a 2018 survey, 81 percent of the 100 companies surveyed did not have anti-sexual harassment policies on the books.
As employment terminations are subject to high standards under China’s Labor Contract Law (misconduct giving rise to an employment termination must be both egregious and demonstrated though a fair process and clear evidence, with unfairly dismissed employees able to claim reinstatement through a simple labor arbitration process), employers faced with credible claims of harassment had to choose between paying substantial settlements or facing the risk of forced reinstatement.
The new laws acknowledge explicitly the role that abuse of power and influence plays in enabling sexual harassment which is a remarkable development, particularly given the extent to which guanxi is embedded in Chinese culture. Affirmative institutional effort will indeed be powerful symbols for the harassment victims.
While the above discussion shows a progressive leaning, the Part on Marriage and Family is another section that was debated upon greatly. The two most controversial aspects of this provision are that under Chinese law, only men and women can marry i.e. same sex partnerships are not allowed. Second it stipulated a ‘cooling off’ period of 30 days after filing for divorce. While this seems like a harmless provision that is applied in many other countries like US, Germany etc. there is a need to understand the larger context behind this law.
The socio-economic landscape in China has changed tremendously in the last few decades. The divorce rate in China has been rising, reaching up to 3.2 (per 1000 persons) in 2018. In 2019 more than 4 million couples parted ways. According to lawmakers the above provision will help reverse this trend by preventing divorces on a whim. Opponents argue that it will threaten lives of victims of domestic abuse, largely women. Falling marriage rates (7.7 percent decline in 2019), ageing population, skewed child birth rates have all exacerbated the looming labour shortage. Further, more women in the workforce is not sitting well with the Party goal of promoting ‘family values’, good social order and higher birth rates. Thus from a progressive stance on gender equality, Party leaders have moved on to advocating more conservative and traditional virtues for women like getting married and raising children, from ‘women holding up half the sky’ to promoting ‘strong family values for a harmonious society’.
This kind of policy disincentive is also being derided for greater state intrusion in private lives and manipulation of peoples’ lives for achievement of national goals. However, according to lawmakers, the new marriage act is an embodiment of the integration of socialist core values into the civil code. The above discussion about two specific aspects of the Civil Code indicate the churning in Chinese society with aspects of both top-down and bottom-up reforms in the wider context of changing state-society relations in a state led market economy.