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Where Law Meets Culture: The Legal Protection of the Dead in China
Bing Shui
Source PublicationUniversity of Miami International and Comparative Law Review
Other Abstract

Can people be harmed after they are gone? If so, by what means can we protect their posthumous interests? Do the dead have legal rights? These sequential questions are not only philosophical puzzles, but are also a problem for lawmakers and judges in most jurisdictions. This article approaches a legal problem that crosses the boundary of life and death, namely how we legally protect dead people, especially under the civil law system. Historically, the law is set up to deal with people from the cradle to the grave. Following the old notion that “the dead do not hear,” the life of the dead is placed in the memory of the living but disappears from the scope of legal concern.1 Once a human being becomes a corpse, on some measures, it may be viewed as something like “a piece of furniture.”2 But the corpse is more than a utilitarian object, it is an ambiguous entity. Consider, for instance, the disposal of the deceased’s body against the local consuetude,3 harvesting organswithout prior consent from the deceased, or disclosing of private information (e.g. medical records). Such examples show how people can be harmed after death. For centuries, fundamental legal categories such as personality, rights, and interests focused on the natural person who is alive. Thus, traditional civil law has the character of being secular. When life no longer exists, where should the legal interests lie? The concept of posthumous harm refers to the harm caused after the victim has died.4 It is necessary to make a distinction between harm caused by death and harm after death, which is often confused in the literature on posthumous harm. In this article, the phrase “posthumous harm” will be used to collectively refer to various harms to the interests of the deceased. The purpose of this article is to clarify the question of what legal logic should be followed in postmortem relief. This is inevitably a grey zone in legal theory. It resembles a black box with one end representing the interests of the deceased and the other end representing the interests of the living. Unfortunately, very few have asked what civil law mechanism can connect the two together. About 9.72 million people passed away in China in 2013,5 which is approximately equivalent to Sweden’s totalpopulation.6 Unfortunately, few Chinese legal scholars have queried whether all or some of the posthumous interests should be advanced or protected as legal rights. In practice, ancestral graves are eradicated for the purpose of real estate development without the consent of the grave owners,7 or the organs of the deceased are donated against the antemortem’s will. 8 All of these acts are made in the name of safeguarding the public interest. However, by simply soliciting the abstract concept of public interest, the juridical foundation of posthumous harm cannot be established convincingly.9 In Chinese culture, on the one hand, respecting the deceased is a deeply rooted moral claim, and thus, posthumous interests should be protected. On the other hand, being accustomed to abiding by the civil law principle that only the living have legal status, many Chinese judges find themselves at an impasse. According to my case study on Chinese Supreme Court’s decisions, judicial attitudestoward posthumous harm nowadays are blurred. On this account, there are many theoretical problems regarding the compensation for death, mental health damages of the next of kin, and litigation disputes related to tombs. Therefore, exploring the problem of posthumous harm is vital to the drafting of the Chinese Civil Code. The article proceeds as follows. Part I starts with existing debates over posthumous harm as the theoretical background, and the article tries to justify the concept of posthumous harm. Part II focuses on the legal practice in China. As the textual analysis shows, the standpoint adopted for the jurisdiction of posthumous harm in China is inconsistent. Uncertainty of law reveals a methodology deadlock: since the modern times, domains of philosophy of law, such as personality and rights or rights and interests, center around the natural living person, thus constituting the legal basis under traditional civil law. However, the intrusion of the concept of the deceased has caused a rupture in the “wall of uncertainty” constructed by the Chinese Civil Code. Part III then tries to unlock the legal puzzle of posthumous harm under the civil law system. After the natural person dies, what are the interests to be protected by civil law? I argue that posthumous interests can be categorized into extended interests, converted interests, and interests of the body. Meanwhile, methodology of legal fiction, which treats these different concepts as equivalent, provides a quite reasonable explanation of the civil law mechanism that crosses the boundary of life and death. At least, it prevents face-to-face conflicts with the traditional civil law with worldliness features and makes the rigid law more flexible by resorting to circuitous strategy. Part IV attempts to apply the preliminary findings to the development of Chinese law. I suggest that theposthumous interests should be protected as legal interests, rather than legal rights. This approach does not only satisfy the systemic requirements of modern civil law, but also preserves the flexibility of legal application. According to the interest-based model, legal protection can only be taken when the defendant acts with malice or with gross negligence when posthumous interests are at stake. It actually implies the use of common sense: the law protects the greater interest better—namely, the deceased person is not and should not be treated on the same level as the living one. Part V offers a brief conclusion. I insist that posthumous harm is not as simple as failing to hold a decent funeral. In modern society, respecting the deceased is no longer a vague moral claim, but a legal norm that needs to be obeyed by the living.

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Document TypeJournal article
CollectionFaculty of Law
AffiliationFaculty of Law, University of Macau
First Author AffilicationFaculty of Law
Recommended Citation
GB/T 7714
Bing Shui. Where Law Meets Culture: The Legal Protection of the Dead in China[J]. University of Miami International and Comparative Law Review,2015,23(1):138-192.
APA Bing Shui.(2015).Where Law Meets Culture: The Legal Protection of the Dead in China.University of Miami International and Comparative Law Review,23(1),138-192.
MLA Bing Shui."Where Law Meets Culture: The Legal Protection of the Dead in China".University of Miami International and Comparative Law Review 23.1(2015):138-192.
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