Alec Stone Sweet on The Constitution and the Civil Code in East Asia: China, Japan, South Korea and Taiwan (HKLJ)

"The Constitution and the Civil Code in East Asia: China, Japan, South Korea and Taiwan"
Alec Stone Sweet
Hong Kong Law Journal, Vol. 55, Part 2 of 2025, pp.153 - 162

Introduction: In East Asian legal systems, national constitutional law and civil codes are developing in increasingly inter-dependent ways, shaping how lawyers plead and judges resolve certain types of cases, and how doctrinal authorities understand the underlying structure of their respective legal systems. Viewed globally, the “constitutionalisation” of the private law in Asia expands comparative inquiry, inviting scholars to revisit old debates and to consider a new set of questions. In each of the countries under consideration here, the forces driving such processes are complex and multi-dimensional. It is no surprise that in Japan, South Korea and the Taiwan Area, change in how high courts exercise their powers of constitutional judicial review have been crucial to enhancing the salience of rights to the litigation of the civil code. In contrast, the Chinese legal system does not feature a constitutional or supreme court, and judicial review of statute is formally prohibited (but see the discussion of the Supreme People’s Court in Bu and Ding). Nonetheless, the new Chinese Civil Code has revived debates about review — and the juridical status of the Constitution — among Chinese legislators, judges, lawyers and scholars.