The declaration in Article 8 of the French Civil Code that "all French people enjoy civil rights" and the provision in Article 6 of the Code that "special agreements shall not violate relevant public order and good customs" are the direct manifestations of the principles of "equality of personality" and "public order and good customs" in civil law. However, the principles of "absolute ownership" and "fault liability" are expressed by the provisions of Article 544 that "ownership is the right to use, benefit from and dispose of things completely according to one's own wishes, but the use prohibited by laws and regulations is not restricted" and Article 1384 that "when any behavior causes damage to others, the person who acts through his own fault shall be liable for compensation to others". As for the principle of "freedom of contract", it is completely scattered and "buried" in various specific rules about contractual debts. However, the German Civil Code does not directly express the basic principles of civil law, which can be called "general principles", and there is no "preface" in the code. As for the "Civil Code" of Taiwan Province Province in China, it imitates German law. Although the chapter of "legislation" is set up in the general principles, there is no general provision on the basic principles [2].
However, the Swiss Civil Code and the subsequent civil codes of other countries gradually attached importance to clearly declaring the basic principles of civil law in the "general provisions" of the code.
The Swiss Civil Code stipulates in its article 1 1: "(1) Everyone has legal capacity; (2) Within the scope of the law, everyone has equal capacity for rights and obligations ".At the same time, Article 2 stipulates that" anyone must exercise his rights and perform his obligations in good faith "(item 1) and" obviously abuse his rights and are not protected by law "(item 2). The above general principles clearly express the basic principles of equality of personality, honesty and credit, and prohibition of abuse of rights.
Japan's civil code is typical, and the whole content of the first chapter of its general provisions "General Provisions" is an enumeration of the basic principles of civil law. Article 1 (Basic Principles) stipulates: "(1) Private rights must be suitable for public welfare. (2) The exercise of rights and the performance of obligations must abide by credit and be honest and trustworthy. " (It is an expression of the principles of "public order and good customs" and "honesty and credibility") Article 2 (Interpretation standard) stipulates: "This law shall be interpreted for the purpose of personal dignity and basic equality between men and women." (It is the expression of the principle of "equality of personality") In the Civil Code of the Russian Federation, in the first part of its general part, the "basic principles of civil law" is clearly stipulated by a special article (article 1). However, the expression of the basic principles in the Code is very confusing and incomplete.
As for the Civil Code of Vietnam, it further comprehensively, systematically and normatively expresses the basic principles of civil law. In the first part "Basic Principles" of the first part "General Principles", a * * * list specifies 12 basic principles. Including "the principle of respecting national interests, public interests and citizens' legitimate rights and interests" (Article 2), "abiding by the law" (Article 3), "respecting public morality and fine traditions" (Article 4), "respecting and protecting personal rights" (Article 5), "respecting and protecting ownership and other property rights" (Article 6) and the principle of good faith (Article 9).
(three) the general principles of the civil law and the legislative examples of the draft civil law
Influenced by the Soviet civil law theory and legislation, the systematic expression of the basic principles of civil law is the consistent practice of civil law textbooks in China. After a long period of development and change, the basic ideas and thoughts of modern civil law have been gradually accepted by our country's civil law theory, and the theoretical induction and legislative expression of basic principles such as equality, fairness, equal compensation, autonomy of will, honesty and credit, public order and good customs, protection of civil rights and prohibition of abuse of rights have been formed.
The General Principles of Civil Law promulgated by 1986 stipulates equality (Article 3), voluntariness, fairness, equal compensation, good faith (Article 4), protection of civil rights (Article 5) and "abiding by the law shall not harm the public interests" in the first chapter "Basic Principles".
The draft of the NPC Law Committee basically follows the method of general principles of civil law. Chapter I General Provisions stipulates the principles of equality, voluntariness, fairness, honesty and credibility, protection of civil rights and public order and good customs. Compared with the general principles of civil law, the draft cancels the principle of "equal compensation".
Mr. Liang Huixing's proposal stipulated the basic principles such as equality, autonomy of will, honesty and credibility, public order and good customs, and prohibition of abuse of rights in the first chapter of the General Provisions. Although it also stipulates that civil rights are protected by law, it is not included in the scope of basic principles.
Mr. Wang Liming's proposal stipulated the basic principles of equality, voluntariness, fairness, honesty and credit, public order and good customs in the first chapter.
In the second chapter of the preface, Mr. Xu Guodong's proposal stipulates the basic principles such as equality, autonomy of will, green, honesty, public order and good customs, and legal supplement. The similarity between the above drafts and scholars' proposals lies in that they all stipulate basic principles such as equality, autonomy of will, honesty and credit, public order and good customs. However, the draft of NPC Law Committee and Mr. Wang Liming's proposal stipulated the basic principles of protecting citizens' rights and fairness, which was not adopted by Mr. Liang Huixing's proposal. The former did not adopt the principle of "prohibition of abuse of rights" stipulated in Mr. Liang Huixing's proposal. For Mr. Xu Guodong's suggestion, the "green principle" has been added ("The parties involved in civil activities should follow the principles of saving resources, protecting the environment and respecting the rights of other animals." When there is no legal provision, judges should apply the nature of "habit and reason" in turn; The so-called "legal complementarity principle" of jurisprudence of the same legal system and foreign law.
Second, the legislative choice of Chinese Civil Code
(A) the basis for determining the basic principles
The basic principles of civil law are the highest abstract induction of the basic values contained in civil law, which are different from the principles as basic concepts in specific systems of civil law (such as freedom of contract in contract law) and the guiding principles as legal technology in specific systems (such as the principle of statutory property rights in property law and the principle of relative effectiveness of contracts in contract law).
According to this standard, the three principles of absolute ownership, freedom of contract and fault liability summarized by traditional civil law theory through the analysis of the French Civil Code are actually not the basic principles of civil law: absolute ownership is only the guiding ideology of property law, freedom of contract is only the guiding ideology of contract law, and fault liability is only the guiding ideology of damage compensation rules. Unless "absolute ownership" is raised to "sacred private right" and "freedom of contract" is raised to "autonomy of will" or "autonomy of private law", it cannot be the value concept guiding the whole civil code. However, in the absence of general provisions on basic principles in this code, this theory still has profound theoretical value for revealing its basic principles in detail.
It can be found that the expression of basic principles in the civil codes of some civil law countries in the future has surpassed the three principles summarized in the theory of the French Civil Code, making it more abstract and broader. Among them, the principle of "freedom of contract" is covered by the principle of "autonomy of will" and has become the supreme core principle of modern civil law. With the introduction of modern civil law, the principle of "absolute ownership" is no longer emphasized. As for the principle of "fault liability", as a general imputation principle of damage compensation, it is more appropriate to arrange it in tort law. At the same time, the principle of "good faith" and the principle of "prohibition of abuse of rights" have entered the basic principle sequence as the value goals valued by modern civil law, which shows that modern civil law further restricts and revises the principle of "autonomy of the will".
China's civil code should fully reflect the actual needs of modern China society on the basis of adhering to the basic concepts established by modern civil law. Therefore, the principles of "equal compensation", "civil activities shall not destroy the national economic plan" and "observing national policies" stipulated in the General Principles of Civil Law have been eliminated by the Contract Law promulgated in March 1999, which is of course correct. Compared with the existing draft, the author agrees with Mr. Liang Huixing's suggestion that it should be defined as five items, namely, the principle of equality, the principle of autonomy of will, the principle of good faith, the principle of public order and good customs, and the principle of not abusing rights.
(b) The principle of "equality" and "fairness".
The author believes that the basic principles of civil law should reflect the unique basic values of civil law. Although "equality" is the universal value of law, in civil law, the word "equality" has its specific connotation as the content expression of "equality of personality" and "independence of will" in civil relations. All the basic ideas and concepts of civil law are based on this principle, that is, the principle of equality is the basis of most other basic principles of civil law, and the two principles of "honesty and credit" and "no abuse of rights" derived from it are actually tools to realize real equality between parties. Therefore, the "principle of equality" should be the highest and most basic principle of civil law, and clearly expressed in legislation.
And "fairness (justice)" is the ultimate goal of law, which has the highest degree of abstraction and fuzziness. It can be said that the Basic Law and all departmental laws are guided by "fairness". However, the concept of fairness in civil law must be specifically expressed through its own basic principles of civil law, and it can only be realized by further implementing the basic principles of civil law through specific norms. In other words, fairness in civil law is expressed by basic principles such as "equality" and "autonomy of will". Therefore, it is not necessary to repeatedly declare the universal value of law through the expression of the principle of "fairness" in civil law.
(3) The principle of "prohibiting abuse of rights" and the principle of "protecting citizens' rights".
There are two different opinions on the abolition of the principle of "prohibition of abuse of rights" in theory: one holds that the restriction of civil law on the exercise of rights is carried out through the application of the principle of good faith, that is, the abuse of rights is the result of violating the principle of good faith in the exercise of rights, and there is no need to repeat the provisions under the condition of stipulating the principle of good faith; Another view is that the principle of good faith and the principle of prohibiting abuse of rights have their own scope of application. Some people think that the former is applicable to the field of creditor's rights law, while the latter is applicable to the field of property law. Some people think that the former applies to the special rights and obligations between the parties to the contract, between husband and wife, between parents and children, and the latter applies to the relationship between the parties other than the above special relationship; Some people also advocate extending the special relationship of the application scope of the principle of good faith to social contact. As far as the development trend of theory is concerned, the former dominated at first, and then the latter gradually prevailed [3].
The concept of "prohibition of abuse of rights" originated from Roman law, which is a kind of restriction on the journey of citizens' rights beyond the proper scope. There are often conflicts between this freedom and right and another freedom and right. The exercise of one person's ownership may hinder the exercise of others' ownership (such as the conflict of interest in adjacent relations), so the law must define the critical point of the scope of rights and powers. However, the concept of absolute ownership in modern civil law often conflicts with the maintenance of the overall interests of modern society (especially in the fields of environmental protection and ecological balance). Therefore, the rule prohibiting abuse of rights is not a restrictive rule for individual rights, but a general clause restricting the exercise of all civil rights, which embodies the modern civil law thought that the fundamental interests of human survival and sustainable development of human society are higher than individual freedom and plays an increasingly important role in the basic value system of civil law. Following the stipulation in the German Civil Code that "the obligee shall not exercise his rights only for the purpose of harming others" (Article 226), the civil codes of Switzerland, Japan, South Korea and Taiwan Province Province of China have made general provisions prohibiting the abuse of rights (Article 2, paragraph 2, of the Swiss Civil Code: "When rights are obviously abused, they are not protected by law." Item 3 of Article 1 of Japanese Civil Code: "No abuse of rights." Article 2, paragraph 2, of the Korean Civil Code: "Rights shall not be abused". It is true that the principle of good faith and the principle of prohibition of abuse of rights overlap in the scope of application, so it is better to regard the prohibition of abuse of rights as the concrete embodiment of the principle of good faith in the field of civil rights exercise. However, in view of the different emphasis of the two regulations, the principle of good faith is more vague and the prohibition of abuse of rights is more targeted. It is more in line with the spirit of modern law to declare the prohibition of abuse of rights as a general clause of civil law. Therefore, taking the prohibition of abuse of rights as the basic principle of civil law and expressing it through legislation will have more advantages than disadvantages.
As for the general principle of "protecting civil rights", it should be stipulated in the general principle of civil code, but it is not the embodiment of the unique value of civil law itself and should not be regarded as the basic principle.