I look for the three historical clues of Yi Jiming's sexuality and the law of private rights growth. To undertake and reform the "Civil Law Draft" in 2002, it is possible to formulate a civil code for the national conditions through the restoration method, namely the "National Civil Code Nine Chapters", followed by the General Principles of Civil Law, Marriage and Family Law, Succession Law, Property Law, Intellectual Property Law, and Contracts. Law, Labor Contract Law, Tort Liability Law and Law applicable to foreign-related civil relations. Take this as a goal and take "four steps"
The legislative steps are: the integration of the Marriage Law and the Adoption Law, the formation of a unified marriage and family law; the second is to incorporate the Labor Contract Law into the Civil Code and to be independently compiled; the third is to incorporate the Intellectual Property Law into the Civil Code and independently compile it; Through the revision of the General Principles of Civil Law, the generality of personality rights, the general principles of property rights (the general rules of debts) and the general principles of business. The civil code formed on this basis is historical, inclusive and contemporary, and will become an important part of restoring the civil life of Chinese people and reshaping the Chinese legal system.
Behind a great code is not a great politician, or a good legislative official or scholar, but the socio-economic and historical and cultural traditions that the Code has produced. Today's Chinese legislative theory, its legal tradition and empirical basis, all from the beginning of the Qing Dynasty and the beginning of the Republic of China; the current choices and considerations of the former, are not the three elements of ancient Chinese tradition, modern capitalism and Marxism and its Specific practice. This paper aims to find the historical clues of the compilation of the laws of the private law under the overall background of China's modern legal system and legal "transplantation". During the process of legal transplantation and localization, it grasps the historical context of the development of Chinese civil law and seeks Chinese civil law. The future of the code.
This paper starts from three aspects: (1) based on the historical significance of the law, proposes three historical clues for the preparation of a unified private code; (2) combines history and reality, inherits and develops the 2002 draft of the Civil Code.
Put forward the "four steps" of the revised private law legislation. This path and model of private law is not only in line with China's national conditions and civil legislative practice, but also a new thinking to reshape the rationalism of the Civil Code (Private Code).
I. Three historical clues for the unification of private law In modern times, Chinese civil legislation can be attributed to the Chinese Civil Law of 1929-1931, the constitutional reform of the Qing Dynasty in 1986, and the draft of the Daqing Civil Law (1911). Finally, the Chinese Civil Law passed the late Qing Dynasty reform system. Ding Ding's formal rationality in China's civil legislation forms a set of concepts and rules systems for civil law systems. After 1949, the General Principles of Civil Law abandoned the first three "Civil Law Drafts" of New China. 1 In combination with the practice of reform and opening up and its needs, the basic principles of civil activities were established, and the legislative model of "General Principles of Civil Law + Single Act" was formed; 2002" On the basis of absorbing the civil legislative achievements (including the general principles of civil law) since the reform and opening up, the draft of the Civil Law has formed a legislative model of “unification and integrationâ€. In this historical context, there are at least several internal tensions: one is unity and Separation; second, inheritance and boycott; third, civil law and common law; fourth, public and private rights; fifth, tradition and modernity; in addition, the opposition between capitalism and socialism can be added despite their The tension expressed in the field of private law is not as strong as in the field of public law, or the tension formed in its opposition has been specifically transformed into the aforementioned tensions. These kinds of tensions are presented and mixed with the current Chinese society. New elements affecting Chinese legislation. These new elements are also historical clues to finding a unified Chinese private code.
In the late Qing Dynasty, the legal "transplantation" from passive to active to localization has been internalized into an autonomous system construction. The ancient Chinese legal style and its development also have obvious succession relationship. 2 The inheritance and continuation of the system on the one hand dispelled the devastating effect of “reforming the dynasty†on society, and on the other hand, it also showed the inherent regularity of social governance and people's life. The extension and adherence of Chinese civilization and national ties are also closely related to this. In view of history, social governance and public and private norms, classification and governance, and the implementation of the concept of "private law autonomy" in the field of private life, and thus classification, it is the law of legal evolution. In fact, the unification of private law and its form, from academic law to statute law, and then evolve and promote the unified codification movement in the field of private life, the drafting of the three civil codes has formed a draft; each draft draft, formed a few Text. For the specific draft texts drafted in detail, see He Qinhua, Li Xiuqing, Chen Yu, eds.: Overview of the draft of the New China Civil Code, Beijing: Law Press, 2003.
For example, the Han law (that is, the nine chapters of the law) is the direct succession of the six articles of Li Shu's Fa-rectification. The only change is that the seven laws of Ming and Qing are also the successors of the Tang Dynasty. In this regard, some scholars believe that: "The seven articles in the Tang Law are directly adopted by the Ming and Qing Laws; the remaining five articles of the Tang Law are slightly modified in terms of words, and are also absorbed by the corresponding categories in the Ming and Qing Dynasties.
In short, the 12 articles of Tang Law have been completely adopted by the Ming and Qing Laws, some of which have not changed, and some of them have been combined into one. (See D. Buddy, C. Morris: The Law of the Chinese Empire, translated by Zhu Yong, Nanjing: Jiangsu People's Publishing House, 2003, pp. 41-44) is not only the habit and rationality of human thinking, but also the civil law system. The classic model of the evolution of the Civil Code. 1 Looking for the future of the Chinese Civil Code from the historical context, involving historical views, values ​​and judgments on the future development of the civil law system. The author believes that the following three major historical clues should be used to construct the civil code of the future China.
First, establish a historical view of historical rationality. Despite searching in the footprints of history, we always seek nutrition through critical eyes, but legal people should have a basic view of history: both laws always have certain rationality, and there are always social and historical causes. Historical philosophy tells people that "rationality" embodied in law is the basis of natural and spiritual life." Because of 'rationality' and 'rationality', all reality can exist and survive. It has historical and inheritance. The historical nature of law, especially private law, determines the path dependence of the formation of civil law system.
From the General Principles of Civil Law in 1986 to the "Draft Civil Law" in 2002, under the legislative policy of "two legs", the legislative model of "General Principles of Civil Law + Single Act" was chosen; by the time of the "Draft Civil Law" in 2002, Gradually transition and form a codified "combination and division" model. These two models are committed to and committed to China's reform practice, and their inheritance and relevance are extremely strong. Zhang Xinbao believes that the Chinese Civil Code wants to stand in the forest of the excellent civil code of mankind. It should be based on the "code of reform and the code of progress". This ideal has already been embodied in the process of the formation of the civil code. The history of the formation of the Chinese Civil Code is not only the history of the development of the Chinese civil law system, but also the history of the screening, selection, commissioning, and localization after the transplantation and boycott of the laws of the mainland, the Anglo-American law, and the Soviet Union. . The ideological origins of Chinese law in modern times are diverse, and there is a strong realism in the doctrine of the golden mean, which makes China's integration into the process of global economic integration without essential obstacles. An economist said, "It is worth noting that compared with other republics in Asia, Latin America and the former Soviet Union, China has almost no major difficulties in its integration with the world economy." The realistic legal scene does not adhere to a certain concept of constant one, nor does it rely solely on the transplantation of a single legal system.
Generally speaking, from the imperial autocracy system that has the "world" to the democratic and rule of law system based on the modern nation-state, China is still in the legal pluralism model centered on the state since the 19th century. Whether at the objective level or at the psychosocial level, China needs a strong government; but it is difficult to adjust, and people under the system often show dissatisfaction or dissatisfaction with various political or legal programs. Under such circumstances, there are two different tendencies of the government and scholars: the government faces the reality with reform measures, and aims to solve the problems of legislation and justice in practice, but it is difficult to satisfy various interests. Scholars have rights. On the basis of the solution proposed, on the one hand, the political authority is diluted, on the other hand, it is also dismembered by the conflicting individual interests. The former is a practical solution based on solving real problems; the latter is a theoretical one based on the science of rights. See Hegel: Historical Philosophy, Translated by Wang Zao, Shanghai: Shanghai Bookstore Press, 1999, Page 9.
Angus Maddison: The long-term performance of the Chinese economy: 960-2030, Wu Xiaoying, Ma Debin, Shanghai: Shanghai People's Publishing House, 2011, p. 7.
case. Both programs seem to have their own rationality, but they all face deep problems. In the pursuit of losing value goals and ideal models, the order led by the government seems to be orderly, but in reality it is impermanent because of lack of institutionalization and conflicts of interests; and the deduction and reasoning based on the ideal picture are not only due to the different logical starting points. It is also easy to turn into a phantom because of the lack of a realistic foundation. In the "orderly chaos", in the "looking beautiful" design, only by following the historical law can we find the way in which the achievements of the Chinese Civil Code stand in history. In fact, the legal origin of the era of codification Diversification, special law is frequent, targeting European countries such as Germany, France, Italy and other countries that already have strict logical structure codes. Even in the first stage of the 19th century European law, those civil law countries follow natural rationality. According to the special circumstances of the country, formulate its own code. 1 Second, implement the private concept of private law and rational rationality (ie private law rationality). The relationship involved in private law is the relationship that occurs in non-political society. "2 The private law regulates all the private life, and the content is vast. The private law in the form of "unification" and "divided", according to the natural rationality of private life; second, to conform to certain social historical and cultural trends. Ancient China The "laws of the law" of the Code have evolved along the "divide" route in the process of modernization: the first step is to separate the private life (civil law), such as the 1911 Daqing Civil Law Draft and the Chinese Civil Law; Two steps, followed by family law (marriage, adoption, family relations and inheritance, etc.), labor laws (labor contracts, social security, etc.) are separated from the Civil Code, such as the 1950 Marriage Law and the 1994 Labor Law; The three steps are the “crossing the river by feeling the stones†in the reform and opening up. The civil law is finally fragmented. The first step is to follow the modern law to separate public and private jurisdictions to resist the interference of public power in private life; the second step is in society. The concept of governance distinguishes between personal law and property law, which makes people's understanding of the civil code only based on purely property-related legal relations; the third step is more in A legislative approach to reforms. Although the second step distinguishes between the Family Law Code and the Private Law Code is not something that happens only after the socialist movement, but more or less, the latter two steps are also what Ilty said." Escape from Alexander Koyev: Outline of the Phenomena of Legal Rights, translated by Qiu Libo, Shanghai: East China Normal University Press, which separates the laws of the nature of marriage, adoption and inheritance from the private law, since 1949 It started after its establishment. Separating the Labor Code from the traditional Civil Code also originated from the legislative model after the Soviet Revolution in October, such as the Soviet Union’s first Soviet Labor Code issued in December 1918, and the new economic policy period in October 1922. Promulgated a new Soviet labor code. The Chinese Soviet Soviet Union Labor Code of 1922 issued the Labor Law of the Chinese Soviet Republic in 1931. It came into effect on January 1 of the following year and was revised in 1933. After the founding of the People's Republic of China, the labor law norms formed on the basis of the 1951 Labor Insurance Regulations and other administrative regulations, departmental rules and normative policy documents are separated from the traditional labor-management relationship and have strong independence. The 1994 Labor Law and the subsequent Labor Contract Law, etc., the integration of public and private law, the nature of social law is significant.
For example, after the reunification of the Kingdom of Italy in 1859, in the process of unifying legislation, Pisanelli proposed that the Code of Family Law should be separated from the Code of Private Law, treating the latter only as a code relating to economic relations.
Some manifestations of the phenomenon of the Civil Code. However, with the establishment of rationality in private life, the fragmented civil law began to show a tendency to integrate, such as the formulation of the contract law in 1999 and the introduction of the draft Civil Law in 2002. In general, whether it is from the classical model of the private law of the mainland, or from the development of the statute law of a certain country, the law of the law or the law that the value target tends to have a kind of internal integration and systemization. Trend. 2 This form of unity and systemization, its substantive connotation is unified under the private concept. For example, "labor contract" is independent of ordinary contracts, its important characteristics have two points: First, its collective nature Or social; second, its personality. The promulgation and implementation of the Labor Contract Law in 2008 marked the initial formation of "market-oriented labor relations": "The individual adjustment of China's labor relations has been preliminary in legal construction. Completion, at the same time, opened a new starting point for the collective adjustment of labor relations and provided a legal basis for the collective adjustment of labor relations. "3 However, whether it is individual labor relations or collective labor relations, no matter how they are converted to each other, the labor market reflects the dual attributes of the personal and property of the labor contract. Even in the institutional facts of the employment work level There are subordinates of labor relations, however, labor contract law, trade union law and the establishment of equality and voluntary relations in the legal sense. Born out of the government's administrative arrangements, the main achievement of China's labor system reform is to establish a labor market, from the law The level confirms the private concept and institutional basis of the labor contract relationship.
Third, conform to the laws governing the growth of private rights in modern society. In 1986, the General Principles of Civil Law itself was a principled code created by the Ministry to comply with the uncertainty of reform and opening up. It conformed to the expansion of private rights in China's specific historical period. This is the law of the growth of private rights in the process of conversion from the planning system to the market system. From the perspective of modern social rights, it can also be called the reshaping and reconstruction of the spirit of private law. However, China has a different logical starting point than traditional Continental countries. The traditional European countries of the 19th century have adopted a civil code with certainty, system and integrity to establish the basic legal concept of safeguarding the lives of citizens, namely, individualism, legislation supremacy, private law autonomy, etc. Value system. However, since the world of Codex is a safe (2003), Beijing: China Renmin University Press, 2004, p. 103.
There is a certain perfectionist tendency in the modern natural law movement, trying to unify all human life through a perfect form of the code, but the final legal life is still different from the private life law and political life law formed by ancient Greece and ancient Rome. The path has made a group of outstanding private laws in modern civil law countries. (See Yi Jiming: The Private Law Spirit and System Choice of the Historical Meaning of the Classical Model of Private Law in the Continental Law. Beijing: The ultra-stable world published by the China University of Political Science and Law requires special legislation to adapt to the development of modern society to expand private rights. 1 China The situation is different. Reform and opening up is a process in which civil freedom is constantly expanding, or private rights are growing. With this process, various kinds of single-line civil legislation are constantly emerging. In China, which is a single-legged law, it needs to be eliminated through the Ministry of Civil Affairs. The conflict between the one-line law and the establishment of a complete set of basic values ​​of private life. The significance of the general principles of civil law is greatly highlighted at this level. In fact, from the early 纂 and the fourth civil code In between, they found their true historical staging points. In this process, there are two clues that have been intertwined and played on the issue of the unification of private law: in essence, the market economy has gradually matured, and various civil legal life forms have emerged, but still fear The law is rigid and hinders development; formally, the concept of private rights and the spirit of private law are gradually forming, accumulating in statute law To a certain extent, the movement of the private code is also like a big tide. It cannot affect the essence of social progress due to the form of the code, nor can it lead to conflicts, conflicts, or even loss of private life due to the manifestations of civil life. The basic legal concept.
These three historical clues highlight the basic concepts of private law and the historical and future nature of the civil system. This means that in the unified movement of private law, we must first establish the rationality of private law and implement the basic concept of private life. On this basis, on the one hand, we must respect the institutional achievements and institutional facts that have come from history, pay attention to the accumulation of the system and its historical culture; on the other hand, we must face the future, through the condensing rules and theoretical innovation, to establish an open Civil system structure and code system.
II. Civil Law Chapter 9: The Uniform Private Law Code Since 1847, German legal persons, especially jurists, have been very serious about the warnings of uliusvon Kirchmann: "The legal person has been turned into a worm by the real law, and they have avoided Open healthy wood, and live on decaying wood, in which to make nests and multiply. In this way, jurisprudence takes the contingency (rule) as the object of its own research, making the jurisprudence itself a 'accidental thing' 'The legislator's correction of the three words of the legal rules can turn the entire library into waste paper." The metaphor at the end of 2 is somewhat whimsical. However, for the various scholarly proposals drafted before and after the 2002 draft of the Civil Code, Ilti said: "Stability is considered to be the primary and basic feature of civil legislation: disrupting tradition and changing the status of change not only changes the individual's Planning, making expectations fall through, and in violation of natural law, these natural laws authorize personal privileges once and for all. Ownership, freedom of contract, and inheritance of death are all eternal systems, which can be supplemented by state power, but neither Cancellation can not be modified." For this reason, the European Union Civil Code has lost its core position in the legal system in the process of adapting to the development of modern society. Under the premise that the Constitution already has the function of guaranteeing rights, "under the context of legislative changes, there are A fast centrifugal trend." (See Natalino Ilti: The warning to solve this is undoubtedly heavy. Before the draft was introduced, Liang Huixing, Wang Liming and Xu Guodong proposed their own proposals; after the introduction of the draft, many scholars still put forward their own suggestions. 2 This paper follows a historical context and proposes a unified approach.
In a broad sense, there are two types of cocUftcation in the world. A kind of traditional substantive codification, which formulates a systematic and innovative written rule system for one or several specific adjustment objects, and lays a logical connection and foundation for legal growth in a specific field. This is a major legislative model for civil law countries. The other is formalcodification in the formal sense. In common law countries, the Code is considered to be a “consolidation†or “restatementâ€. Legislators simply extract rules from legal research results, such as the United States, Canada, and other English languages. The so-called "codes" and "revised laws"
Compilations such as "revised laws" and "consolidated laws" are not true codes in the European sense. Of course, common law countries also have some similar codification actions in the substantive sense. This is the case in the United States to establish a unified commercial code; civil law countries also have the case of codifying the existing texts together. 3 Generally speaking, in the future, the Chinese Civil Code will naturally follow the tradition of the European Law, and it should promote the codification of civil law in the substantive sense. However, since the 20th century, the process of global integration has intensified, and the way in which law is involved in social life is characterized by diversity. In legal practice, statute law and case law are no longer strictly separated, and the civil law system and the Anglo-American legal system are gradually integrated. As some scholars have said, the 21st century will continue to stage such general trends. The text of the proposed draft of the Civil Code, hosted by Liang Huixing, can be found in Liang Huixing, editor-in-chief of the draft of the Chinese Civil Code, Beijing: Law Press, 2003; 7. Prepare the draft of the Civil Code Proposal with a list of reasons, general rules, property rights, and editions. Wang Liming's text of the proposed draft of the Civil Code, see Wang Liming, editor: Draft and draft of the draft of the Chinese Civil Code, Beijing: China Legal Publishing House, 2004; thereafter, published its general rules, personality rights, and civil code recommendations Draft and legislative reasons. Xu Guodong presided over the text of the proposed draft of the Civil Code, see Xu Guodong, editor: For example, Yu Nengbin and Yu Lili proposed the formulation of the "General Principles of Civil and Commercial Law", which unified the civil and commercial law and formed a civil and commercial law co-author; Yan Youtu and Ma Changhua proposed The three methods of human law, rights law and tort law; Chen Xiaojun proposed general rules, people, relatives, inheritance, general provisions of property law, property rights, general rules of creditor's rights, and separate personality rights and infringements. (For details, see Yu Nengbin and Yu Lili: Formulating the "General Principles of Civil and Commercial Laws", Perfecting the Legal System of Civil and Commercial Laws, and Yu Nengbin's Study of Laws, Beijing: Law Press, 2007, Chen Xiaojun, etc.: Comparative Study of Structural Design of Civil Code, Beijing: Law Publishing Society, 2011, 398-404 may eventually only find legal historians to find the usefulness of the contradiction between the common law and the civil law system. "1 As mentioned earlier, in the 18th and 19th centuries After the first round of codification of Euro, the special legislation in the 20th century was frequent, and the legal sources were diversified. It has entered the second stage of codification, namely the stage of codification. The third stage is the pseudo-codification stage, also known as the pseudo-codification stage. The concept of traditional codification of omnicodification and multi-polar codes. "2 General principles of civil law have historically adapted to the period of codification and prepared for the third stage of "re-codification." The Civil Code of the Future retains the general principles of civil law in the style of the country, which is not only in accordance with the needs of the country's traditions and practices, but also the trend of the world to adapt to the future trend of codification. In the face, the modern code is the product of enlightenment. Under the concept of the natural law code, the code should be complete, covering all areas of civil society; the code should be rational, and it is naturally derived from the presuppositions that are self-evident. The code is also universal, and can even be applied to all interpersonal relationships and transactions that take place at all times and places. There is only one source of the code: the basis of universal implication and immutability, that is, natural reason. This is the enlightenment In the real life, in the process of formulating the code, we often deviate from the understanding of Enlightenment for various reasons. 3 In fact, it is in this sense, this paper proposes The movement of the private law emphasizes the formal rationalism of the private life that the traditional civil code should follow. Therefore, the civil code system proposed in this article is based on the general principles of civil law and maximizes the law in the private life field. In 2002, the "combination of the Civil Code" was more compact and prevented from falling into the pure "assembled civil code".
In general, the proposal proposed in this paper inherits the history of the compilation of Chinese civil law since the General Principles of Civil Law in 1986, and at the same time conforms to the expansion of private law in modern society, overcoming the rigidization of the German Pandektun system. The body structure and arrangement are as follows: Edited by the People's Republic of China, the First Law, the Marriage and Family Law, the Third Edition, the Inheritance Law, the Fourth Part of the Property Law, the Fifth Edition, the Intellectual Property Law, the Sixth, the Contract Law, the Seventh, the Labor Contract Law, the Eighth Division, the Tort Liability Law, the Ninth, the Foreign Civil Relations Law Application Law. Combined with the above analysis, this nine-volume system is organized according to the rationalist line pioneered by the modern natural law movement, which is characterized by historical, versatile and contemporary. First, historic. Continuation of the "Draft Civil Law" in 2002
One aspect is to adopt the open general law of civil law instead of the relatively closed general rules of civil law, to expand the integration of the general part of the traditional civil code to make it more inclusive; and the second is that the civil code is more open in overall structure. To maximize the harmony between absolute rationality and relative rationality; 2 is to enhance the integration and interaction between the general rules and the division of the Civil Code. Third, the era, that is, on the basis of covering the main contents of the traditional civil code, the labor contract law with strong socialization in modern society and the intellectual property law embodying the characteristics of the knowledge economy era are all incorporated into the civil code system, reshaping the system. The rationalist image of the private code.
As far as the general thinking is concerned, this historical, versatile and contemporary design scheme, like the two schemes proposed by Su Yongqin, has greater flexibility and reality. 3 This is the quality that any good code must have. Bodenheimer said: "The law can be used as a tool that can be called a progressive differentiation. In other words, the classification and distinction of law is increasingly adapted to the complex diversity and infinite infinity of life." 4 Otherwise, There will be a number of separate laws and regulations that are outside the Code and that are at the same time conflicting, defying or chaotic. At that time, to solve these problems, it may be necessary to develop a refereeing technique similar to the equity method in the Anglo-American legal system. 5 Su Yongqin proposed two alternative styles. First, the nine preparations, followed by the General Principles of Property Law, the Property Law, the Contract Law, the General Principles of Human Law, the Marriage Law, the obvious tendency of independence in commercial law, and even scholars proposed to develop independent commercial law. Under the general voice, the meaning of passing. (For suggestions on the formulation of the General Principles of Commercial Law, see Shi Shaoxia: Some scholars who should implement substantive commercial law in China analyze from the perspective of absolute rationality, and believe that it is impossible to formulate the Ministry of Civil Code as the fundamental law for regulating the legal relationship in the field of private law. Therefore, based on the consideration of relative rationality, it is considered that civil legislation should be completely open and adopt the one-line legislative model. The author believes that this is not based on the kind and balance of private law, but only a single-line method. From the perspective of the legislative model, see Feng Lekun: From the absolute following, there are still some differences between Su Yongqin's two legislative schemes. The former is the nine, the property law is independent, the marriage law and the adoption law are separately compiled; the latter eight, the property law enters the property. The law of law, while the law of intellectual property is independent, the marriage law and the adoption law are all compiled by the relatives. However, in the design of the General Principles of Property Law and the General Principles of Human Law, both programs show greater flexibility. (See Su Yongqin: Looking for a new civil law, Taipei: Yuanzhao Publishing Co., Ltd., E. Bodenheimer: Jurisprudence: Law Learning and legal methods, translated by Deng Zhenglai, Beijing: China University of Political Science and Law published as Yao Hui said, the Code should also or inevitably leave some gaps, leaving the case to solve, leaving the system, followed by the General Law of Property Law, The Contract Law, the Intellectual Property Law, the General Principles of Human Law, the Family Law, and Wu Handong all have a positive attitude towards the establishment of the General Principles of the Property Law, and put forward their respective opinions and reasons, and have some similarities with Su Yongqin’s plan. Ma Junxi’s “General Principles of Property Lawâ€, sometimes referred to as the “General Principles of Property Lawâ€3, sometimes referred to as the “property and property rights†claim, actually amended the assumptions he had made earlier in the seven preparations. 5 Wu Handong From the perspective of integrating three types of property rights (that is, ownership rights as the core of "personal property rights", intellectual property as the core of "intangible property rights", and "claims and inheritance rights" as the core of "other property rights"), establishing a property rights system Departure, propose that the future civil code should be set up in the "General Principles of Property Rights" to integrate the property rights system and make general provisions on various types of property rights. 6 This paper argues that the Civil Code contains “General Rules of Property Law†(or “General Principles of Property Rights†and “General Principles of Property Lawâ€), which is similar to the newly drafted Dutch Civil Code. It is the approach of the civil law to the Anglo-American law. Or a manifestation of the fusion of the two.
This kind of practice is a kind of sublation of the traditional Pandeke's system, which not only retains the property rights and credit system, but also adapts to the diversification of modern social property rights system. In Su Yongqin's two designs, the general law of property law in the second scheme even directly incorporates the main content of the traditional property law. However, the legislation on property rights in China has already been introduced, and in the case of the independent drafting of the civil law draft, there is no need to stack bed-frame houses and separately stipulate the property law. Therefore, Su Yongqin’s general principles of “people†and “property†can be found in Su Yongqin: Looking for a new civil law, pp. 32-34.
See Su Yongqin: Looking for a new civil law, pp. 35-37.
See Ma Junxi, Cao Zhiguo: Shoucheng and Innovation's views on the formulation of our national code. The legal science Ma Junxi proposed the "General Principles of Property Law", and the "preparation of property and property rights" is the following: The application of property and property rights, property rights, contracts, personality rights, relatives, inheritance, infringement and civil law. (See Ma Junxi and Mei Xiaying: The General Principles for Setting Property Rights in China's Future Civil Code. Ma Junxi's Early Seven-Scheme Plan, actively accepts the “Personality Right Law†as a special editor, but does not set the “General Law of Property Law.†These seven series are: General rules, personality rights law, relative law, property law, contract law, inheritance law and tort law. (See Ma Junxi: The development trend of modern civil law and the constitution of our national code legislation system. See Wu Handong: On the property rights system and the civil code. General Principles of Property Rights, China Law 2005 The Dutch Civil Code of 1992, originally designed as Ten, namely: natural person law and family law, legal person law, results law and private international law. Among them, the intellectual achievement law part, because Europe seeks integration The patent and trademark system, combined with technical reasons, was put on hold (see Arthur S. Hartkamp: The Dutch people were incorporated into the General Principles of the Civil Code and placed in the first edition of the nine recommendations recommended by the author. Naturally, the substance of the general rule of property rights (or the general law of property law) proposed by Ma Junxi and Wu Handong can also be incorporated into the general principles of civil law.
In addition, Su Yongqin has separately designed the civil liability. In the case that the Civil Law General Regulations still retain the “Civil Liability†chapter and the Tort Liability Law has been compiled, there is no need to design it separately. 1 The author's nine-piece system arrangement, on the one hand, inherits the history formed since the General Principles of Civil Law, integrates and revise the existing civil single-line law; on the other hand, reshapes the civil code as a symbol of the basic law of civic life, so that the Civil Code is as The main part of private life. This is a constructive plan to complete the unification of private law after the formation of the Chinese socialist civil law system in 2010, with the minimum legislative cost, adopting “integrated†or more accurately called “repairing†legislative methods. The expansion of private law in modern society, the development direction of the codification movement and the historical trend of China's gradual social transformation.
Third, the "four steps" legislative steps in the order of the first easy and the difficult, the author suggests nine to develop a unified private code, can take the "four steps" legislative steps. Here, for the specific steps and the corresponding layout structure, a brief description is as follows: First, the unity of the marriage and family law. That is, the merger of marriage law and adoption law, the establishment of a unified marriage and family law. During the review of the "Draft Civil Law" in 2002, some members of the Standing Committee of the National People's Congress also made this proposal. 2 On the issue of the merger of the Marriage Law and the Adoption Law, the academic views are almost identical. However, there are still differences in the name of the merger. For example, Liang Huixing suggested "relatives", and 3 Wang Liming suggested "marriage and family." The author named "Marriage and Family Law" instead of "relative law". One of the "marriage and family" is easy to understand, and there is a legislative tradition of the "Marriage Law"; the Chinese family's "small child" phenomenon caused by family planning has already diluted the early family structure with strong family color. As for the order of arrangement The Civil Code, which covers all of private life, should start from the beginning of life, that is, the warm-hearted family. Therefore, the Marriage and Family Law is placed after the first general rule of the Civil Law.
Naturally, the inheritance law still adopts the traditional civil law system, which is not included in the Marriage and Family Law, but is an independent editor and placed after the Marriage and Family Law. At the same time, as a property inheritance right, it is also The basic norms governing property relations, that is, the property law, are connected to each other and naturally transition.
From the perspective of the establishment of the claim system in the Civil Code, Wei Zhenduo analyzed the reservation of civil liability in the general part, while the tort liability law was independently compiled. (See Wei Zhenduo: On the nature and system of the right to request. In the future, according to Li Peng, chairman of the Standing Committee of the National People's Congress, according to the time when the Standing Committee of the National People's Congress examined the draft civil law on December 25, 2002, Zhou Qiang proposed the merger law.和收养法两编，作为婚姻家åºæ³•ç¼–。（å‚è§ç«‹æ³•ä¸Žç›‘ç£æŽé¹äººå¤§æ—¥è®°ï¼ŒåŒ—京：新åŽå‡ºç‰ˆç¤¾ã€ä¸å›½æ°‘主法制出版社，2006年，第745页）æ¢æ…§æ˜Ÿä¸»ç¼–：ä¸å›½æ°‘法典è‰æ¡ˆå»ºè®®ç¨¿ç¬¬å…编亲属。
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