[author] Ji Weidong

[content]

The Civil Code and the Reconstruction of Chinese Society

*Author Ji Weidong

Senior Professor of Humanities at Shanghai Jiao Tong University

President of the Chinese Academy of Law and Social Sciences

1.Why does modern society need to compile a civil code?

Traditional China does not have a civil legal system. Civil relations are considered to be the details of land, housing, commodity cultivation, transactions, and family affairs. They are generally regulated through etiquette, morality, customs, and village rules and agreements, and disputes are resolved through mechanisms of civil or village autonomy. Serious threats to public order require administrative measures and punishment.

Civil law is a product of social modernization and the basic institutional framework of the Western European market economy society. In the late Qing Dynasty, China, like Japan in the Meiji period, put the compilation of modern legal codes on the political agenda in order to abolish unequal treaties and the extraterritoriality of foreign powers, and to develop industrial economy. In the late 19th century, Japan once had a cultural conservatism slogan of "loyalty and filial piety perish after the emergence of civil law", but in the end, the advocacy of institutional reform prevailed and fully accepted the civil code systems of France and Germany. Stimulated by this fact, China once drafted the draft of the Qing Civil Code in 1911, but did not have time to review and promulgate it. After the establishment of the Republic of China, the Civil Code of China was promulgated in 1931. However, in 1949, the six law system of the Republic of China was abolished, resulting in a legal gap for a long period of time after the establishment of the People's Republic of China. There are only two basic laws, the Constitution and the Marriage Law, one governing the country and the other managing the household. Since 1954, the plans formulated by the Civil Code have been proposed several times, but have been suspended several times due to the constantly changing economic and social systems. I went to Japan to study in October 1984, when the dispute between civil law and economic law had just settled. The Third Plenary Session of the 12th Central Committee of the Communist Party of China made a decision on economic system reform, and the theory of civil law began to prevail. On April 12, 1986, the General Principles of Civil Law were passed, establishing the equal status of civil subjects, known as the Declaration of Rights in contemporary China, which attracted high attention and participation from the Japanese legal community (exchanges between Hideyoshi Hoshino, Yoshitaro Kitagawa, and Wang Jiafu, Jiang Ping, Wei Zhenying, Huixing Liang, Liming Wang, etc.).

The General Principles of Civil Law is the first civil basic law officially promulgated in China under the socialist system, formerly known as the "Micro Civil Code", aimed at establishing the principle of subject equality and voluntariness in property and personal relationships between citizens, legal persons, and between citizens and legal persons. It was from this law that the terms "planned contract" and "economic contract" were replaced by the more market-oriented concepts of "contract" or "debt". Article 85 of the General Principles of Civil Law defines "contract" as "an agreement between the parties to establish, modify, or terminate a civil relationship," emphasizing that "contracts established in accordance with the law are protected by law," and attempting to limit administrative intervention in contractual relationships concluded through negotiation between equal parties as much as possible. Subsequently, throughout the entire era of reform and opening up, separate civil laws were continuously promulgated, gradually forming a scale and system. In 1998, the National People's Congress finally decided to compile a civil code, set up a drafting group and formulated a three-stage compilation plan. China's accession to the World Trade Organization has accelerated the preparation work for the compilation of the Civil Code. With the repositioning of ownership in the 2004 constitutional amendment and the successful passage of the Property Law in 2007, the compilation of the Civil Code has overcome a major obstacle. The Japan Institute of International Studies has also held an international seminar specifically for this purpose, and I am one of the planners. In this sense, I have been present from the General Principles of Civil Law to the compilation of the Civil Code, even as an observer and sometimes playing the side drums. In March 2015, the Legislative Affairs Committee of the Standing Committee of the National People's Congress officially launched the codification of the Civil Code. Since then, "the voices of apes on both sides of the Taiwan Straits cannot stop crying, and the light boat has passed through the mountains". The General Principles of Civil Law were passed in March 2017. On May 28, 2020, the compilation of the Civil Code was finally completed.

Why is it necessary to compile a civil code? This is a fundamental question that lingers in the hearts of many people In the process of European modernization, the reason why civil code is needed is to transform society, liberate marriage, registered residence and family relations from the shackles of religion, and promote the secularization and rationalization of society; Liberate individuals from feudal identity attachment relationships and promote social liberalization and equality; Liberate economic activities from various old ethical norms, recognize the absolute nature of ownership and contractual freedom, and promote market trading behavior. Therefore, the compilation of the Civil Code aims to change society based on new concepts, requiring a certain degree of rational design for market transactions, with the aim of limiting public power, protecting private rights, improving predictability, and reducing transaction costs. So we can say that the Civil Code clarifies cultural rationality through writing.

The European civil code compilation movement also has a goal, which is to change the state of inconsistent civil customary norms and high transaction costs in various regions. Through unified laws, unified rules of conduct can be formed, which is conducive to the uniformity of norms and standards in the domestic and even international markets. In the Middle Ages, European countries such as France and Germany were long under feudal systems, with manorial economies dominating and civil customary laws in rural and urban areas varying greatly. The situation in imperial China is also similar, with many different patriarchal systems and village rules and agreements, and traditional dianquan also resulting in a complex situation of multiple owners of one field and various overlapping rights and interests. Therefore, in the context of expanding market size, a unified civil legal order is needed. Of course, the unification of civil law norms also implies the concentration of state power to some extent, and in this sense, it can be said that the Civil Code has a certain degree of centralization. State power can regulate market behavior through the Civil Code, which also implies the depersonalization of governance and the abstraction of power.

From a different perspective, daily life is diverse and social relationships are complex and ever-changing, with randomness and uncertainty, making it difficult to predict. This social complexity requires simplification through the Civil Code and corresponding legal system. Reorganizing various social phenomena and facts through simple binary coding of legality and illegality can increase the predictability of behavior, enhance social transparency, and facilitate long-term, large-scale investment and trade. While simplifying the complexity of society, the Civil Code seems to make all problems solvable within a refined system of rules, but it also inevitably brings the complexity of society into the legal system. Therefore, the Civil Code needs to enter a state of self completion and self reference, known as the "system closed loop". At the same time, the Civil Code must also establish a corresponding relationship with society, constantly complicating and refining its internal structure in order to reflect the complexity of society. Simplifying social complexity in a way that complicates the law itself is the paradox of civil code compilation.

Looking at it from another perspective, the Civil Code is like a list of behavioral rules, or a list of rights and obligations (telephone directory), so it must have coherence, consistency, and be able to clearly show the consequences of various behaviors. Foucault, the most outstanding philosopher in 20th century France, once used Bentham's design of the Panopticon, a central surveillance tower, and a telescope style surveillance device as a metaphor for modern power features in his book "The Birth of Prisons". In a sense, it can also be said that the Civil Code is a comprehensive monitoring device for the governance of civil society, reflecting a more effective power strategy for managing individuals' bodies and behaviors.

In summary, the reasons for promoting the compilation of the Civil Code, such as transforming society, unifying normative order, reducing social complexity, forming a list of behavioral rules, and promoting the centralization of state power under the premise of depersonalization, are also generally applicable to China.

2. Can the Civil Code constitute a social closure

Forming a self referencing system?

According to the classification established by German jurist Friedrich Carl von Savigny (1779-1861) in 1814, there are three basic forms of legislation. Namely, (1) institutional innovation aimed at changing the existing pattern, (2) making normative decisions to clarify the standards of behavior, and (3) compiling legal codes to eliminate conflicts between the meaning and effectiveness of provisions. According to the historical experience of Western Europe, Japan, and other written law countries, the premise and result of the establishment of the Civil Code is to make the group of civil regulations as coherent, logically rigorous, self closing, and self referencing as possible, thereby simplifying the complexity of society. There is a potential assumption here that the Civil Code is perfect and pure, and all social issues can find normative basis or solutions in the Civil Code. Therefore, once the Civil Code is promulgated, various social relations must be handled within the framework of the code. In this sense, the Civil Code can be seen as a comprehensive monitoring device for society. It can be imagined that in this context, the focus of civil law will shift from formulating norms to interpreting norms, and we will inevitably usher in an era of interpreters. In other words, legal positivism will prevail in the field of civil law. This will also promote a dogmatic (legalist) attitude, which is based solely on the logical deduction of existing provisions, believing that the hidden normative basis or solution can be found in the existing rule system through explanation, reasoning, and argumentation.

The question is, is the Civil Code really perfect, without loopholes or gaps? The answer is of course negative. If that's the case, then naturally there will be a call to make the legal system open and allow those blocked social facts to re-enter the rule system, in order to fill loopholes and gaps. This is an attitude based on experience, which also means that the compilation of the Civil Code cannot be done once and for all. It needs to keep pace with the times and continuously formulate rules for reform and abolition according to changes in the social environment. This position inevitably emphasizes the induction, summarization, and academic processing of objective facts and behavioral patterns and conventions that arise in social practice, and is more inclined towards empirical analysis based on empirical science in legal sociology rather than legal positivism. In this sense, the Civil Code is more like a kaleidoscope style adjustment device (a combination technology of Western mirrors). Its basic framework is fixed and its provisions are limited, but by constantly changing the combination of norms and facts in the reflection mirror and constantly transforming the structure, infinite and diverse beautiful patterns can be produced. In short, the kaleidoscope type regulating device and the overview type monitoring device are two different understandings of the Civil Code, forming a sharp contrast.

In fact, we can also review the process of compiling the Civil Code from the above two perspectives and test the quality of the Civil Code. The original intention of compiling the Civil Code was to reduce the complexity of society and increase its transparency by creating a list of social behavior rules, in order to improve the possibility of predicting and calculating market economic activities. Therefore, the commonality in the compilation of civil codes in different countries is the need to refine and systematize existing legal norms, forming a set of axioms and proposition groups similar to mathematics, in order to conduct necessary conceptual calculations and find the most reasonable way to resolve disputes in legal judgments. For example, in Germany, some scholars (such as Anton Friedrich Justus Thibaut, 1772-1840) advocate for the compilation of a civil code that requires rational design from scratch based on natural law and social contract theory, in order to transform society. On the extension of this line of thought, there are Leninist views on civil law and radical revolutionary practices in civil and commercial affairs that break through bourgeois legal rights.

However, other scholars (such as Savigny) emphasize the significance of national characteristics and historical experience, and emphasize that civil law rules should be naturally generated, rooted in cultural traditions and practical living conditions, and gradually developed through the accumulation and sublimation of customary law. Therefore, efforts should be made to summarize and process customary law academically, and only when the legal system is mature can conditions be met for compiling a civil code. Savigny's ideas were once considered conservative or even reactionary by many people. However, upon careful examination of his arguments, it can be found that Savigny actually intends to relativize the domination of the past over the present, but at the same time, he believes that legislation alone cannot fundamentally change the existing normative order, and it is necessary to change people's way of thinking and legal communication. From this perspective to examine Savigny's academic achievements, it is easy to understand why he did not directly analyze the national spirit and civil customs of Germany, but instead delved into the doctrine and institutional design of Roman law. In 1803, he published the masterpiece "The Law of Possession," which for the first time in the history of law conceptualized the Pendleton style theory of property law. This indicates that Savigny's pursuit of historical jurisprudence is purely a historical examination of legal concepts and their universal significance isolated from political reality. In other words, without such refined academic processing and universally applicable attributes, the emphasis on national spirit and habits can only become conservative and reactionary, or only constitute a special local knowledge, and even transform into a self entertaining language game. In a sense, it can also be said that Professor Wang Zejian's academic review and exploration of the Chinese Civil Code and precedents, known as the "Tian Long Ba Bu", is a representative masterpiece of China's refined processing of civil law.

It must be admitted that from the above two perspectives, there are obvious shortcomings in the compilation of the Chinese Civil Code. Therefore, in the future, it is necessary to further refine and systematize legal norms, and summarize new legal norms from social facts. That is to say, after the promulgation of the Civil Code, we should constantly consider the issue of reforming and improving civil law. From social reform to civil law reform, institutionalized methods and means should be adopted, among which the most important is to strengthen case studies, enhance civil law interpretation, and vigorously promote interdisciplinary dialogue and communication between legal hermeneutics and legal sociology. It is not difficult to imagine that the focus of this dialogue should be on the relationship between the Civil Code and social change.

3. What are the concepts and characteristics of the Chinese Civil Code?

Undoubtedly, the Chinese Civil Code embodies the fundamental values of modernization. For example, emphasizing the equal status of civil subjects, the voluntary principle of civil activities, the protection of ownership and freedom of contract, and the secular rationality of marriage, family, and inheritance. Overall, the newly promulgated Civil Code is in line with the historical trend of market economy development, an institutionalized form of the achievements of reform and opening up, and a milestone of profound significance in the development of a rule of law society. It is particularly noteworthy that Article 207 of the Property Rights Section of the Civil Code explicitly states that "the property rights of the state, collectives, individuals, and other rights holders are equally protected by law, and no organization or individual may infringe upon them." This actually negates the value hierarchy of the state, collectives, and individuals at the ownership level and promotes the gradual evolution of the constitutional order.

It cannot be denied that compared with the civil codes of other countries, China still exhibits more characteristics of "publicization of private law". There is no strict distinction between public law and private law, and the purity of not being bound by the Civil Code is due to both the influence of the times and institutional reasons. In a sense, it can be said that as a stroke of structural innovation in the Civil Code, the individual compilation of personality rights is actually embedding a detailed list of constitutional rights into the civil legal system, further highlighting the status and role of the principle of public order and good customs in the civil law system. Against the backdrop of a data-driven society, such civil system arrangements do indeed reflect some characteristics and needs of the intelligent network era, and are conducive to solving practical problems in China such as disregard for personality rights, personal information security, and privacy protection. They are worthy of high praise. In a sense, it can also be said that this is the concept of compiling the Chinese Civil Code and the starting point for future social transformation.

We all know that traditional Chinese society lacks a concept of privacy. In today's society, the application scope of artificial intelligence has become increasingly widespread, significantly improving production efficiency and quality of life. Of course, this convenience comes at a cost. From the perspective of modern constitutional law, this cost is mainly the sacrifice of privacy. Providing massive amounts of data, images, and other individual information to computers for learning and processing, in order to predict and imitate behavior, artificial intelligence systems are bound to consume and chew on privacy in large quantities. But privacy is the foundation of individual freedom. That is to say, highly evolved electronic computers may to a considerable extent restrict or even deprive individuals of their freedom through algorithmic dictatorship (Algocracy, as described by John Danaher), which will encourage people to constantly give up their basic rights through various incentives such as efficiency, convenience, and entertainment. This cost also includes machines that can think, which will significantly replace human behavior and offend human dignity. The mixing of humans and machines is actually leading to the animalization and mechanization of humans, and raising a series of dilemmas about humanity, justice, and ethics at the fundamental normative level. In addition, this cost also includes the weakening, transformation, and disintegration of accountability mechanisms caused by algorithmic black box, making it difficult to implement the modern rule of law spirit that restricts power.

According to reports, by the end of 2017, the number of cameras installed in Chinese cities had reached 170 million, and there will be a significant increase thereafter. Due to the strict restrictions on facial recognition technology unlike Europe and the United States, and the lack of a program that requires personal permission for the use of image data, China's performance in artificial intelligence research based on massive image data is indeed outstanding and has reached the world's top level. This unique condition makes artificial intelligence systems highly capable of deep learning and able to quickly apply relevant results to various aspects of economic and social governance, but it also exacerbates the degree of algorithmic black box. If we want to avoid crude data capture and algorithmic dictatorship, develop a trustworthy and explainable artificial intelligence based on the principle of "people-oriented", and prevent the abuse of public power shifting or shirking responsibility in the name of intelligent decision-making, we must pay attention to constitutional research related to artificial intelligence, the Internet of Things, and big data, and seriously explore ways and measures to effectively protect citizens' basic rights, especially personal information security and privacy rights, in the high-tech era.

As is well known, with the progress of reform and opening up, China's property relations have become increasingly complex; Due to the incomplete social credit system, the difficulties in debt collection and judgment enforcement have become increasingly prominent since the 1990s. In this context, it is necessary for the Supreme People's Court to use big data, artificial intelligence, and Sesame Credit's credit information to investigate and punish the dishonest behavior of the executed person. However, it cannot be ignored that after the formation and strengthening of the joint disciplinary mechanism of government civilian integration, without appropriate regulatory constraints and data security guarantees, China will rapidly transform into an unprecedented "surveillance society" through the scoring system as a medium, and individual rights are easily violated in one way or another. For example, Sesame Credit's scores and records of dishonesty will be stored as digital archives for five years, which will have profound and complex negative impacts on various aspects of family life, including education, employment, promotion, and insurance coverage. The result may be that every citizen has a digital personality composed of big data and artificial intelligence that follows them like a shadow, unconsciously affecting their destiny; It may revive the identity principle that has been negated in the process of modernization on the basis of digital personality, in fact, dividing every citizen into three, six, nine levels as a "network person"; It may actually deprive citizens of the opportunity to repent and reform (for which the EU General Data Protection Regulation provides the right to delete personal information and the right to be forgotten as remedies), leading to a greater lack of mobility between social classes, especially resulting in the solidification of the bottom and the formation of "virtual slums"; Individual citizens may be labeled according to a certain classification system or group characteristics, resulting in identity principles and algorithmic discrimination within the framework of so-called 'new collectivism'.

The "iron triangle" of the Internet of Things, big data, and artificial intelligence may also deprive citizens of their right to self dispose of personal information (privacy), personal dignity, and equality before the law in certain situations. For example, common e-commerce and online platforms use personal consumption information as learning data, analyze behavioral patterns, and publish benchmark advertisements. Whether this constitutes a violation of privacy rights needs to be carefully considered. Especially when genetic information contains innate characteristics, once interpreted and leaked by artificial intelligence, it can easily affect individuals' enrollment, employment, and participation in commercial insurance, greatly reducing the life opportunities and choices of certain citizens. Especially since the insurance system is originally a mutual assistance mechanism formed based on the contingency of adverse outcomes, if artificial intelligence can accurately calculate and predict the future risks of specific individuals through various data, it is necessary to classify insurance applicants into different types for differentiated treatment, resulting in unequal treatment between people. Some citizens may suffer discrimination and exclusion, which will fundamentally shake the logical basis of the insurance system's risk diversification through contingency. In a certain sense, it can also be said that if differences based on genetic information from parents are allowed at the institutional level, it is actually a regression towards the feudal era's view of bloodline and identity principles. In fact, the fundamental principle of modern constitution is to uphold the freedom and equality of citizens, and never allow reasons that individuals cannot choose or correct as the basis for unequal treatment.

In addition, in June 2019, Momo Network Technology Company launched the intelligent software "ZAO Face to Face Play", which created various popular emoticons and classic movie clips through a single frontal photo, causing a sensation. But there is a standard clause in the user agreement that requires consumers to grant the company the right to their portrait completely free, irrevocable, and permanently, and allows the company and its affiliates to disseminate, sublicense, and sublicense online information globally, which has sparked criticism from the media and led to regulatory action by the Ministry of Industry and Information Technology in September. In October of the same year, an associate professor from Zhejiang University of Technology filed a lawsuit against Hangzhou Wildlife World for forcibly using facial recognition technology for ticket checking, in order to maintain personal information security and the validity of annual pass contracts. The above phenomenon indicates that the risk awareness of arbitrary collection and use of personal image data in Chinese society has increased, and constitutional rights in the era of artificial intelligence are becoming a very prominent social issue. Therefore, we have reason to regard 2019 as the "first year of digital human rights" in China.

However, the institutional cost of amending the constitution is very high and it is not easy to reach social consensus. In this sense, Articles 1032 to 1039 of the Civil Code provide detailed provisions on privacy rights and personal information protection, which are particularly worthy of attention and high praise. It is here that the Civil Code truly plays the role of the so-called 'constitution of civil society'. The Civil Code defines the concept of privacy as including three aspects: private space, private activities, and private information. It stipulates that no organization or individual may infringe upon the privacy rights of others by means of espionage, intrusion, disclosure, or public disclosure (Article 1032). Subsequently, specific acts that violate privacy rights were listed (Article 1033). Regarding the processing of personal information, the three principles of legality, legitimacy, and necessity have been clarified, and excessive processing is prohibited (Article 1035). It also stipulates the right of information subjects to access, correct, object, delete, etc. (Article 1037). This means that the Chinese Civil Code provides the most important lever for social transformation through privacy and personal information protection, and provides specific guarantees for citizens' freedom rights. Of course, the design of privacy and personal information protection systems is closely related to tort liability, so there may be further room for consideration and adjustment in the rationality of the structure arrangement of the Civil Code chapters.

4. The Civil Code and the Contractization of Social Relations

From the General Principles of Civil Law to the General Principles of Civil Law, from specific groups of civil laws to the compilation of comprehensive civil codes, the fundamental direction of law and social change can be summarized by one keyword: contractualization. From the perspective of legal sociology, contractualization refers to the transformation of social relationships into concrete contractual relationships, establishing order based on game theory, reciprocity, agreement, and consensus. This social trend will certainly affect the compilation of the Civil Code, and in turn, the Civil Code can promote this social trend.

4.1 Two historical types of contractualization

The modernization movement of the national governance system was characterized by the famous formula "from identity to contract" used by the 19th-century British historian Henry Main. On the extension line of this proposition, the representative Japanese civil law scholar, My wife Rong, believes that creditor's rights must enjoy an outstanding position in modern law, and contracts and breach of contract liability constitute the core of modern civil law and even the entire legal system. By the end of the 20th century, Hugh Collins, a prominent contemporary British jurist, claimed that with the transformation of industrial capitalism and the decline of bureaucracy, "contracts" had once again become the most symbolic symbol of politics, economy, and culture, and even the entire social life was undergoing a transformation known as contractualization. Even in France, where bureaucracy is strong, there has been a trend towards the contractualization of public power activities. The historical process of the two stages mentioned above, totaling about two to three hundred years, is also a microcosm of about thirty years in contemporary China.

Since the early 1980s, China has formed a tripartite system of economic contract law, foreign-related economic contract law, and technology contract law. Later, the relevant regulations were restructured into a unified contract law. In this process.

Contracts become a means of forming competitive mechanisms or improving economic efficiency, that is, a means of promoting marketization. In other words, it is to replace social relationships (such as economic planning, administrative regulation, etc.) that originally did not belong to the scope of contracts with contractual relationships, expanding the scope of private autonomy. At that time, in situations where Chinese laws were not yet fully developed, contracts became one of the legal sources. It should be noted that marketization here does not necessarily reduce the role of the government. On the contrary, under industrial policies that focus on efficiency and rationality, the government often strengthens its monitoring of the market and increases its responsibilities for administrative guidance and regulation. Contractization alone will inevitably promote awareness of consumer rights protection and require judicial institutions to demand administrative services from the perspective of consumers, and to evaluate and even hold accountable the performance of public power. In any case, there exists a confrontational relationship between the government and the market, the state and society, and attempts are being made to promote the privatization of state-owned economy at the enterprise level and establish the concept of "consumer first" at the individual level, with the protection of private rights and the principle of autonomy of will as the goal of legal reform.

However, by the beginning of the 21st century, about twenty years later, due to the globalization of economic and trade exchanges and information communication, and perhaps influenced by the easing of regulations and the implementation of "big bang" structural reforms in East Asian countries, Zhang Wuchang's modern contract theory and Zhang Weiying's market cooperation theory were quite popular in China In a sense, it can be said that at this stage, the reconstruction of various social relationships (especially cross-border social relationships) around the axis of contract freedom and the minimization of administrative intervention (especially breaking through the barriers of nation states) have become the main theme of the past decade, and have been more or less reflected in the compilation of the Civil Code. The typical sign of the latter stage is the popularization of the "negative list" accompanied by the establishment and expansion of free trade zones, which aims to minimize the power and functions of the government - everything that the private sector can do should be entrusted to the private sector, and private enterprises, non-governmental organizations, and non-profit organizations should be encouraged to do what is not prohibited by law. In addition, many tasks of public power are also entrusted or outsourced to private institutions for implementation, which means that government operations themselves tend to be contractual, making the most of private resources and reducing restrictions on the provision of services by the public. However, the accompanying problems are the opportunistic structure of public and private use to varying degrees, as well as the widening wealth gap in a free spirited atmosphere. So after the mid-2010s, there were gradually some reverse policy shifts that emphasized the leading role of state-owned enterprises and the government again. However, from the fact that the Internet of Things, big data, artificial intelligence (which objectively form an aggregation mechanism for consent computing), and blockchain protocols (decentralized consent chains and trust networks) are increasingly becoming important ways of social governance, it can be judged that the historical trend of contractualization is impossible to reverse.

4.2 Four phases of contemporary social contract relations

The social governance achieved through contractualization often constitutes a medium or transitional form between the laissez faire market and hierarchical organizations. Here, contracts are no longer a means to promote marketization, but a means to constrain and control the behavior of others. That is to say, contracts go beyond reciprocal transactional relationships and become a way of organizing communities and constructing systems. The function of contracts is particularly prominent on e-commerce or online trading platforms such as JD.com and Alibaba, and permeates into people's daily lives. Large digital economy platforms do not require government intervention and can play a role in autonomy and co governance solely through contracts. They can even construct a normative framework for international trade through electronic commercial services and private regulation. The combination of big data with production and consumption scenarios, intelligent monitoring of behavior records such as retrieval, reading, and purchasing, and online credit scoring systems have formed a certain level of flat and decentralized governance mechanism, which can effectively sanction and prevent deviant phenomena to a considerable extent. However, at the same time, commercial forecasting and aggressive inducement advertising based on electronic records have also distorted the principle of autonomy of will to some extent, making the concept of contracts more complex. The complexity of contractual relationships is the reality and ideological foundation that we must face.

Contract based platform governance actually exacerbates the intersection, overlap, and mixing of private law and public law, and in the process of contractualizing social relations, makes contracts the manifestation of social relations and the social relations themselves. Therefore, from the perspective of legal sociology, "relational contracts" formed on the basis of continuous and special business transactions or "institutional contracts" closely related to public interest and public power intervention need to be re understood in theory and repositioned in legislation. The essential characteristic of a relational contract is to understand the contract from the perspective of the process, including the past, future, and current time structure. Guided by reciprocity, long-term rationality, and future consensus, the contract endows the parties with flexibility to adapt to changes, and weaves the content that allows for individual negotiations and post transaction into the composition of the contract. The essential feature of institutional contracts is public-private cooperation, including contracts commissioned by the government to provide public services to the private sector, changes in instructions by public power agencies, internal contracts planned as contractual relationships, public bidding for administrative purchases, and the Shanghai Municipal Government's private car license plate auction system, among others. It can be said that (1) the relationship contract of "social network embedding", (2) the single shot contract of "one shot buying and selling", (3) the institutional contract of "public affairs embedding", and (4) the transaction contract of "business talk", precisely constitute the four basic phases of the current contract phenomenon in China and the world, and there are interactive relationships between them.

4.3 Examining complex contract phenomena from the perspective of the Chinese Civil Code

It goes without saying that since we hope to compile a civil code that is oriented towards the social development trends of the 21st century, it is necessary to incorporate the different types and levels of contractualization mentioned above into the scope of institutional design. The Civil Code of the People's Republic of China emphasizes the equal status of civil subjects (Articles 2 and 4) and the principle of voluntariness (Article 5) in its general provisions. In the Contract section, a contract is defined as an agreement between civil subjects to establish, modify, or terminate a civil legal relationship (Article 464). These all reflect the fundamental position of modern contract law, especially single and transactional contracts.

However, at the same time, the Civil Code also sets specific content on institutional contracts in relevant articles. For example, contracts involving government directive tasks such as disaster relief and epidemic prevention and control, or national ordering tasks, the principle of voluntariness is relativized, and the parties may not refuse the other party's reasonable request to enter into a contract (Article 494). In similar situations, there are also contracts involving government pricing or government guidance pricing. The government's decision to change has priority, but in the event of market changes, the standard is favorable to the parties involved (Article 513). In addition, Chapter 10 does not treat contracts for the supply and use of electricity, water, gas, and heat as administrative contracts. It can be understood as continuous supply contracts or relational contracts, with some special treatment methods for simultaneously exercising the right of defense and terminating the contract. Article 653 concerns the criteria for determining the timeliness of emergency repairs and compensation in situations where power supply is cut off due to natural reasons, while Article 655 pertains to relevant national regulations on safety, conservation, and planned electricity use, as well as the agreements between the parties. It is an interesting research topic on how the government can intervene in the contractual relationship in such situations, and whether the agreements between the parties can become a fulcrum for the privatization of public welfare undertakings such as electricity, water, gas, and heat.

4.4 Legal positioning of standard terms and suggestions for amending the Civil Code

Both institutional contracts and relational contracts often have standard terms as an important feature. The definition of standard clauses in the Chinese Civil Code is clauses that are pre drafted by the parties for the purpose of repeated use and are not negotiated with the other party at the time of contract conclusion, ensuring the validity of the contract through the principle of fairness and the obligation to indicate and clarify (Article 496). Obviously, individual bargaining is not allowed here, and unreasonable terms can only be corrected through legal principles afterwards. Therefore, standard terms are not based on individual intentions, but are implemented collectively to achieve their effectiveness, and have a time structure that is either implicit or present. To evaluate the appropriateness of standard terms, it is necessary to deeply consider and scrutinize the social relationships and interactive processes behind the contract, understand its content through specific discussions, and draw conclusions about the performance effect. Given the necessity of reflecting on and re evaluating standard terms, the Civil Code specifically lists three situations in which contracts are invalid (Article 497), and establishes a principle of resolving disputes arising from different understandings of contract content that is unfavorable to the provider of standard terms (Article 498). Due to the fact that individual negotiations are not allowed in institutional contracts, some scholars advocate understanding the essence of standard terms from an institutional perspective. However, if standard terms as a long-term contract can be adjusted according to the principle of change of circumstances set forth in Article 533 of the Civil Code, have some flexibility, and can refer to social norms to resolve conflicts in understanding contract content, then they should also be understood as relational contracts.

By examining the standard clauses of the Chinese Civil Code based on the concept and content of relational contracts, it can be found that there are deficiencies in the rules of change. Against the backdrop of intensified social changes, significant increases in uncertainty, and restructuring of the world order, it seems necessary to retain room for appropriate adjustments in fixed transactions targeting an unspecified majority without individual consent or allowing for individual negotiations. Of course, changes to standard terms cannot be made arbitrarily by the provider and should be subject to restrictions The change of standard terms can only be justified when it conforms to the general interests of many other parties, does not violate the established purpose of the contract, and has obvious rationality It goes without saying that the content of the change, the timing of its effectiveness, and other information must be immediately publicly announced. It can be imagined that without such clear rules for change, standard terms are prone to becoming rigid or falling into the subjective arbitrariness of standard term providers. Therefore, I believe that at the appropriate time, civil law reform should be used to add content on changing rules in the standard terms section, in order to enhance the agreement of standard terms and reduce their power, which can also better respond to the practical needs of various online trading platforms.

5. Conclusion

The reason why we look forward to a civil code and highly value it is mainly based on the following three reasons.

Firstly, some of the basic rights of citizens declared in the Constitution need to be implemented through civil law provisions in order to be coordinated and integrated with each other. In this sense, it can be said that the Civil Code is the fundamental norm of economic and social life and should become the civil expression of human rights (constitutional rights). In addition, in addition to the rights related to traditional property and family relationships, with the changes of the times, some forms of rights related to intellectual property and information (such as privacy rights) have also emerged and become increasingly important, which also need to be recognized through civil law norms. The establishment of a new section on personality rights in the Civil Code reflects this purpose very well.

Secondly, the core values of modern civil law are freedom and equality, aimed at breaking free from the constraints of medieval identity relationships, thus bringing profound changes to the social structures of various countries. In China, the economic achievements of reform and opening up are mainly manifested in the market determining resource allocation and making property rights and contractual relationships increasingly developed. Therefore, it is necessary to confirm their legitimacy through the basic system and values of civil law. In this sense, it can also be said that the Civil Code should and may display a blueprint for the transformation of the social system. Of course, the social blueprint suggested by China may differ slightly from the classic and simplistic understanding of civil law in modern Western Europe, which is the "law of free and equal citizens". China's new civil law is bound to go beyond abstract and homogeneous individual citizens, reflecting a certain characteristic of "social integration based on diversity". Based on the above understanding, we can understand the non purity of the Civil Code and some characteristics of the publicization of private law, and of course remain vigilant against excessive administrative color.

Thirdly, modern civil codes use creditor's rights, especially contractual relationships, as a mechanism to ensure and promote the exchange and transfer of economic values such as people, property, and assets, leading to more efficient resource allocation. Looking at the Civil Code, the principles of equality of civil subjects (Article 2, Article 4), voluntary principle - the principle of individual autonomy in establishing, changing, and terminating civil legal relationships according to their own will (Article 5), fairness principle (Article 6), good faith principle (Article 7), and public order and good customs principle (Article 8) have all been explicitly stipulated, which is conducive to the formation of a debt based structure in the civil legal system and the use of general provisions in judicial practice to appropriately regulate social relations and promote social change. Additionally, it is worth noting that the Civil Code recognizes the attribute of custom as a judicial norm, based on the premise that there are no legal provisions and it does not violate public order and good customs. This creates a certain interaction between social facts, contract types, and the structure of tort liability, thereby strengthening the flexibility of the legal system and the mechanism for generating rights. This means that at the time of the promulgation of the Civil Code, opportunities have been reserved for the interaction between the Civil Code and social reconstruction, as well as for future civil law reforms, which helps to avoid rigid dogmatism.