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Official Gazette

Monday, September 23, 2019

Major orientations set for revision of Civil Code

Updated: 14:39’ - 30/07/2013

The Ministry of Justice, the agency in charge of amending the 2005 Civil Code, has disclosed eight orientations for improving the Code, aiming to assure its stability in the future.

To this end, the position and role of the Civil Code in the legal system should be clearly and consistently defined. This is the first orientation which would enhance the Civil Code’s role as the foundation of the legal system. Under this orientation, the revised Code would be added with provisions on principles of application of law in case specialized laws’ provisions are in conflict with those of the Civil Code. Specialized provisions and provisions overlapping the Constitution should be removed from the Code.

The second orientation is restructuring the 2005 Civil Code. Accordingly, the revised Code would consist of five parts, including: Part I - General provisions, Part II - Jus in re, Part III - Jus ad rem, Part IV - Inheritance, and Part V - Civil relations involving foreign elements.

The third orientation involves the revised Code’s Part II - Jus in re, which would be developed from the 2005 Code’s Part II on property and ownership rights. Specifically, the new Part II should contain general provisions as well as specific provisions on ownership rights and other rights to property. Regarding ownership rights, the revised Code should clearly define the concept and content of ownership, grounds for establishment and termination of ownership and protection of ownership. It would also specify other rights to property such as usufruct, rights of state enterprises over assets assigned by the State, land use rights, easement and priority rights, among others.

The fourth orientation deals with the right of possession which would be prescribed as a separate institution in the revised Code. Accordingly, the right of possession means the right a person attains from the holding of an asset in reality. Possession of an asset would be considered a condition for establishment of rights over such asset. As the holder of an asset is usually presumed as the owner of such asset while anyone else reckoning him as the owner must prove his ownership. Therefore, it is necessary to add the institution of right of possession to the Civil Code as this would prevent the arbitrary use of force to appropriate assets and, therefore, help assure social order and security.

Improving legal mechanisms for better recognizing and protecting rights and interests arising from contractual relationships is the fifth orientation. In light of this, the revised Code would formulate a no-fault compensation regime to replace current regulations which require the identification of fault as well as parties at fault. In case fault should be pointed out to serve as a condition for the performance of compensation liability, those who cause damage would be obliged to prove fault. Additionally, the statute of limitations would be counted from the date damage sufferers realize or are informed of the infringement upon their rights or legitimate interests. 

The sixth orientation aims to ensure high stability of market relations, thus putting an end to the situation whereby contracts are terminated by either of involved parties without plausible reasons. The revised Code, therefore, would provide for serious breach of contract, saying that a contractual party may unilaterally terminate the contract only in case the other commits a serious breach of contract. The revised Code would also further improve provisions on conditions for contracts to be valid so as to minimize cases in which contracts are declared to be invalid.

The seventh orientation is to further improve the legal status of subjects of civil relations, especially households and cooperative groups. Though some propose the elimination of households and cooperative groups from subjects of civil relations, others hold that such a move would cause social disorders.

The final orientation focuses on redetermination of forms of ownership. Specifically, the revised Code would provide for only three forms of ownership, instead of six as currently prescribed, including private ownership, co-ownership and public or state ownership.-

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