The "General Principles of Civil Law" belongs to law.

The General Principles of the People's Republic of China and the Civil Law are China's legal provisions on some homosexual issues in civil activities and are general laws in the civil law system. It was revised and adopted by the Fourth Session of the Sixth National People's Congress on April 12, 1986, and came into effect on January 1, 1987. ***Chapter 9, 156 articles.

Introduction/"General Principles of the People's Republic of China and Civil Law"

"General Principles of the People's Republic of China and Civil Law" Album

1986 4 On March 12, the "General Principles of the People's Republic of China and the Civil Law" was promulgated. This is the first officially promulgated Basic Civil Law in the history of New China. It is an important milestone in China's civil legislation and is known as China's "Declaration of Rights." It inherits China's ideal of reform and development since the late Qing Dynasty to rejuvenate the Chinese nation, opens up a new situation in New China's construction of a socialist democratic political and market economic system since the reform and opening up, and lays the foundation for the socialist market economic legal system with Chinese characteristics. , which provides the basic premise and basis for the gradual improvement of my country's civil legal system.

In the past twenty years, great changes have taken place in all aspects of society, and many new flaws have been exposed in the "General Principles of Civil Law", which have become more and more prominent. It can be said that the "General Principles of Civil Law" is very It is difficult to adapt to the needs of the development of market economy and has completed its special historical mission. From the various flaws in the "General Principles of Civil Law", we can clearly see that it is very urgent to revise the "General Principles of Civil Law". However, we should also realize that Amending the General Principles of Civil Law and enacting a civil code must be carried out when conditions are ripe, otherwise, to a certain extent, "evil laws" will be more harmful than helplessness.

The legislative body has a clear plan for the drafting process of the "General Principles of Civil Law" and strives to submit it to the National People's Congress for review in the spring of 1986. To this end, it requires that the fourth draft of the Civil Law and the opinions on eight issues raised by the Legal Affairs Committee be included in the drafting process. On the basis, the members of the drafting group will divide the work and write the provisions as soon as possible, and the drafting group will revise them after collective discussion, and then revise them after extensive solicitation of opinions. During the drafting process, democracy and centralism were intertwined and brainstormed, and the "General Principles of Civil Law" finally reflected and concentrated the opinions of many parties.

In order to formulate an excellent civil code, the whole society, especially experts in the fields of legislation, judiciary and legal theory, should work together and strengthen the understanding of Western developed countries, especially the civil law system. Research on behalf of national law, German and Japanese civil codes, and civil law theories should also be based on China's actual situation; especially the special conditions of the socialist market economy for research and demonstration, and the various flaws in the "General Principles of Civil Law" should be revised and deleted. Those contents that are inconsistent with the market economy, combined with the specific conditions of our country, supplement and improve the scientific and advanced civil legal systems of foreign countries, and work together to formulate a complete, scientific and advanced civil legal system that is suitable for the socialist modernization drive. An excellent civil code with Chinese characteristics.

The promulgation of the "General Principles of Civil Law" provides a fundamental legal basis for civil justice and a legal basis for judicial interpretation. After the promulgation of the "General Principles of the Civil Law", the reform of the economic system has further developed. On April 2, 1988, the Supreme People's Court issued the "Opinions on Several Issues Concerning the Implementation of the General Principles of the People's Republic of China and the Civil Law (Trial) 》, ***200 items. Judges and scholars refer to it as the "Two Hundred Articles."

Related background/"General Principles of the People's Republic of China and Civil Law"

Album of "General Principles of the People's Republic of China and Civil Law"

The name of the symposium held by the Legal Affairs Committee in June 1985 was the Symposium on General Principles of Civil Law. During the symposium and drafting process, suggestions were made to change the name, and three names were proposed: General Principles of Civil Law, General Principles of Civil Law, and Outline of Civil Law, each with its own differences. The main reason is that the content should go beyond the scope of the general principles of civil law and solve legal problems that need to be solved in practice.

At that time, the laws that were part of the civil law already included marriage law, inheritance law, economic contract law, trademark law, patent law, etc. What was lacking were mainly the general principles of civil law, property rights and legislation on tort liability. It was difficult to put the drafting of property rights law on the legislative agenda. Therefore, it was decided to draft the General Principles of Civil Law that focused on the content of general provisions and also took into account the content of sub-provisions. It can be seen from the content of the "General Principles of Civil Law" that it highlights the provisions of the general principles of the civil law and touches on the issues of the sub-principles of the civil law, but the details are very different. The main issues of property rights and creditor's rights are briefly stipulated; personal rights are stipulated in a separate section, highlighting the protection of personal rights; the civil liability chapter highlights tort liability. In addition, there was no law on the guardianship issue at that time, so the provisions were more detailed; there were instructive provisions on intellectual property rights. The "General Principles of Civil Law" also stipulates that legal lending relationships are protected by law. The reason why lending relationships are so highlighted is because problems in this area are very prominent in practice. At that time, some judges suggested that the issue of borrowing should be briefly stipulated. Even if there is only one provision, it would be convenient for the Supreme People's Court to make judicial interpretations based on the "General Principles of the Civil Law" so that the adjudication of loan cases has legal basis. This is how the provision on borrowing in Article 90 of the "General Principles of the Civil Law" came into being. of.

1. The regulation of individual industrial and commercial households and rural contracted households focuses on consolidating the results of the reform

There are still different opinions on whether individual industrial and commercial households and rural contracted households are civil entities. There were also different opinions when drafting the General Principles of Civil Law. From the principles of civil law, it is difficult to say that individual industrial and commercial households and rural contract operators are civil subjects. The legislative body mainly considers the issue from a policy perspective. At that time, rural contract management had been implemented throughout the country, and individual industry and commerce had developed greatly. Such major policy issues should be determined in the form of the Basic Civil Law. The "General Principles of the Civil Law" stipulates the property and liability relationships between individual industrial and commercial households and rural contract operators and their family members, which provides a legal basis for resolving relevant disputes. The result of the discussion was to stipulate individual industrial and commercial households and rural contract operators as citizens (natural persons) in Section 4 of Chapter 2.

2. The stipulation of individual partnerships focuses on reflecting the policies at that time

In the early days of reform and opening up, a wide variety of economic organizations appeared, which was dazzling. From the perspective of civil subjects, it boils down to It can be divided into three categories: sole proprietorship, partnership and legal person, but it is not simple to define it in the "General Principles of Civil Law". One of the issues encountered in legislation is the legal status of partnerships. There are two opinions on this. One opinion is that partnership should be stipulated as a civil subject, and the other opinion is that partnership is a contractual relationship. The leading intention of the legislative body is to stipulate that individual partnerships focus on reflecting the policy of reform and opening up. The theoretical issue of whether it is a civil subject will be continued to be studied by scholars in the future. Section 5 of Chapter 2 Citizens (Natural Persons) was finalized to regulate personal partnerships.

The second question is whether to stipulate that the property of a partnership belongs to the partnership. This is originally a routine issue in civil law. However, the "General Principles of Civil Law" does not directly stipulate this, but stipulates as follows: The property invested by the partners shall be managed and used uniformly by the partners; the property accumulated by the partnership shall be owned exclusively by the partners (Article 32). This provision is mainly to prevent people from misunderstanding ownership as public ownership and affect people's enthusiasm for investing in and operating partnerships. It is stipulated that the property invested by the partners shall be managed and used uniformly by the partners. Is there any fundamental difference between the actual effect and the legal effect?

Question 3: How to distinguish between an individual partnership and a large employer? At that time, there were already individual industrial and commercial households employing one to two hundred workers, which were called large employers at that time. Article 30 of the "General Principles of the Civil Law" stipulates that a partnership refers to two or more citizens who, in accordance with an agreement, each provide funds, materials, technology, etc., and work together. It is stipulated that partners must work together, which excludes large employers of workers. At that time, the policies for large employers were not clear, so no regulations were made.

3. The key point in stipulating legal person joint ventures is to draw a clear line between civil law and economic law

Chapter 3 of the "General Principles of Civil Law" on legal persons, of which Section 4 has three articles (Articles 51-53 Article) provides for joint venture issues.

In the reform process, three basic forms of joint ventures have emerged. One is close joint ventures, which are actually joint ventures with joint ventures that establish legal person qualifications. The second is semi-close joint ventures, which are actually joint ventures with joint ventures. Contributing capital to establish a partnership enterprise; the third is loose joint venture, which is actually the establishment of a long-term contractual relationship. Scholars call these joint ventures, legal person joint ventures, partnership joint ventures, and contractual joint ventures respectively. Articles 51-53 of the General Principles of the Civil Law It is these three forms of joint ventures that are stipulated. From a traditional civil law point of view, the nature of these three provisions are legal person, partnership and contract respectively. According to convention, they should not be stipulated together. My understanding of the provisions of the "General Principles of the Civil Law" is: first, the provisions on joint ventures reflect the reality of the reform, so that joint venture relationships have clear legal provisions and there are laws to follow when disputes arise. Second, stipulating individual partnerships and legal person partnerships separately excludes partnerships between individuals and legal persons. This is because partnerships between individuals and collective enterprises or state-owned enterprises are related to major decisions and require caution, so there are no regulations for the time being. Third, when discussing the draft of the General Principles of Civil Law, some scholars who advocated "big economic law" believed that joint ventures were a matter of economic law and that joint ventures should not be stipulated in the General Principles of Civil Law. The legislature insists on stipulating joint ventures in the General Principles of Civil Law, which actually confirms that joint ventures are civil legal relationships, not economic legal relationships, thus further clarifying the legal boundary between civil law and economic law.

Guiding ideology/"General Principles of the People's Republic of China and Civil Law"

1. Combining theory with practice. This is my country's consistent legislative guiding ideology. During the symposium on the Draft General Principles of the Civil Law held in December 1985, Chairman Peng Zhen and Vice Chairman Peng Chong both talked about this issue and pointed out: We must be guided by scientific theories and Practice is the basis; we must proceed from reality and solve practical problems; we must embody the socialist system with Chinese characteristics.

2. It is necessary to sum up China’s experience and learn from foreign legislation.

3. Economic relations are adjusted separately by civil law, economic law, and administrative law, and cannot be adjusted uniformly by a certain legal department.

4. The content should be concise, and the written expression should be accurate yet popular.

5. Legislation must be complete, but priorities must be clearly defined. The establishment of the "General Principles of Civil Law" does not mean that the Civil Code will be eliminated. The Civil Code will be enacted later when conditions are mature.

Interpretation of key contents/"General Principles of the People's Republic of China and Civil Law"

Atlas of "General Principles of the People's Republic of China and Civil Law"

Determination of the adjustment objects of civil law

As for the adjustment objects of civil law, in socialist countries, it is an issue of division of legal departments. The main issue involved is how to determine the boundaries between civil law and economic law. Regarding this issue After a long debate, scholars from the former Soviet Union finally clearly stipulated the objects of adjustment of civil law in the 1961 "Outline of Civil Legislation of the Soviet Union and All Union Countries". Not long after China's reform and opening up, my country began to discuss the adjustment objects of civil law. Then there was a debate on the adjustment objects of civil law and economic law. There were different views and plans. The main differences were reflected in the two oppositions called "big economic law" and "big civil law". The theory that advocates the greatest theoretical influence of macroeconomic law is the theory of vertical and horizontal unification, which holds that economic management relations (vertical economic relations) and economic relations between enterprises (horizontal economic relations) should be uniformly adjusted by economic law. The theory of commodity relations that advocates the greatest theoretical influence of the Great Civil Law is the commodity relations theory, which holds that commodity ownership relations and commodity exchange relations should be uniformly regulated by civil law. When the "General Principles of Civil Law" was drafted, there was no objection to the affirmation that commodity relations should be adjusted by civil law. The different opinions were whether the adjustment objects of civil law were limited to commodity relations. The dominant opinion is to basically refer to the Civil Code of the Soviet Union. Property relations are delineated by equality, and personal relations are limited to personal relations adjusted by civil law methods. Based on this, Article 2 of the General Principles of Civil Law is formed: equal subjects. Property relations and personal relations between citizens, between legal persons, and between citizens and legal persons.

This provision is different from the expression and connotation of the Soviet Civil Legislation Outline. The outline and the preface to the Soviet Civil Code of 1964 both state: “The adjustment of Soviet civil law is due to the use of commodity currency forms in the construction of communism. The property relations arising therefrom, as well as the personal non-property relations related to these property relations. "Article 2 of the Soviet Civil Code stipulates the relationships regulated by the Civil Code in four paragraphs, of which the third and fourth paragraphs provide for administration and taxation. , budgetary property relations, family relations, labor relations, and land relations are not regulated by civil law. Different from the Civil Code of the Soviet Union, the General Principles of Civil Law includes marriage and family relations, guardianship relations, land relations, and intellectual property relations. However, for those that already have separate laws, they are mainly indicative or principled provisions.

In principle, legal persons independently enjoy civil rights and bear civil obligations.

The provisions on legal persons in the "General Principles of Civil Law" are different from those in countries such as Germany and the Soviet Union. First, the General Principles of Civil Law clearly stipulates the conditions that legal persons must meet, and the conditions stipulated are relatively strict. It is stipulated that legal persons should be "established in accordance with the law." This provision directly relates to whether private economic organizations can obtain legal person status, which is a policy issue. This provision makes it easy to flexibly control it according to the situation in practice. The second is whether an unlimited company has legal personality. Foreign laws have different attitudes towards this, and there are different opinions during the drafting process. Article 36 of the General Principles of Civil Law stipulates that a legal person is an organization that has the capacity for civil rights and civil conduct, and independently enjoys civil rights and assumes civil obligations in accordance with the law. The basic spirit of this provision is that in principle, legal persons should bear civil liability independently. The enterprise legal person section clearly stipulates that one of the conditions for an enterprise legal person is "the ability to independently bear civil liability" (Article 41), and also stipulates "unless otherwise provided by law." (Article 48). This provision leaves room for flexibility. room.

The "General Principles of Civil Law" uses the two concepts of civil legal conduct and civil conduct.

Does the General Principles of Civil Law continue to use the traditional concept of legal conduct? There are three opinions on this issue: one is to use legal acts, the second is to use civil legal acts, and the third is to use civil acts. The reason for advocating the use of civil legal acts is that the concept of legal acts has been used in jurisprudence, which has expanded the connotation of legal acts. The purpose of using civil legal acts is to distinguish them from legal acts in jurisprudence. In addition, stipulating that civil legal acts are legal acts is to establish a behavioral standard for people. This standard is reflected in the conditions that civil legal acts should meet in Article 55 of the General Principles of Civil Law. To advocate the use of civil behavior means to use civil behavior to replace the concept of legal behavior. Civil behavior and legal behavior have the same connotation. There are two reasons for using civil acts: first, to clarify the civil nature of the act and to distinguish it from administrative acts. The second is to avoid the shortcomings of traditional civil law theory that attributes legal acts to legal acts and at the same time attributes invalid legal acts to legal acts. Later, the two concepts of civil legal acts and civil acts were adopted in the General Principles of Civil Law.

The proposal of the concept of "property rights related to property ownership"

Whether the concept of property rights includes usufruct rights in the "General Principles of Civil Law" was discussed during the drafting, and there is no principle in academic theory There are differences, and we have considered whether to use the concept of property rights in the "General Principles of Civil Law" and reached a consensus. In view of the fact that people were relatively unfamiliar with the concept of property rights at that time and were worried that the concept of property rights would affect the adoption of the General Principles of the Civil Law, some scholars proposed that the title of the first section of Chapter 5 of the General Principles of the Civil Law should be: "Property Ownership and Property Ownership" relevant property rights". This is a legislative technical issue and a concept under specific historical conditions. This can also be said to be our country’s national conditions.

Establishment of the management rights of state-owned enterprises

The "General Principles of the Civil Law" stipulates that enterprises owned by the whole people have the right to operate the properties granted to them by the state for operation and management and are protected by law. This provision is a reflection of the implementation of economic system reform and the expansion of enterprise autonomy in business operations. It changes the concept of business management rights used in the past. There is a qualitative difference whether the word management is removed or not. Whether the issue of management rights of state-owned enterprises is a matter of civil law or economic law is one of the debates on the adjustment objects of civil law and economic law.

Some scholars who advocate macroeconomic law believe that management rights do not arise from the relationship between equal subjects and are not civil rights. Some scholars say: State-owned enterprises are surnamed "guo" and not "people", and their management rights should be placed in economic law. Scholars who advocate civil law believe that the basis for the creation of management rights and the management rights themselves do not have the same meaning. Management rights are civil rights and have the nature of property rights. During a discussion on the revised draft of the General Principles of Civil Law, a scholar emphasized that I participated in this discussion just to insist that the General Principles of Civil Law should have the concept of "business rights." Finally, the legislative body adopted the opinions of civil law scholars and implemented them in Article 82 of the General Principles of Civil Law.

Special section stipulates personal rights

Chapter 5 of the "General Principles of Civil Law" covers civil rights, of which Section 4 deals with personal rights. When drafting, some scholars suggested that personal rights should be highlighted and be more specific. The reason is that our country did not protect personal rights enough in the past and there have been many cases of arbitrary infringement of personal rights. Everyone agrees with this opinion. Section 4 has eight articles, and it should be said that it was written in more detail under the conditions at the time. In the section "Civil Liability for Infringement" in Chapter 6 Civil Liability, specific provisions are made on liability for infringement of personal rights.

In the past, the civil law community has long denied and criticized the mental damage compensation system in Western countries. During the drafting, there was a discussion on whether to provide for mental damage compensation. The mainstream view is yes, but the word "spiritual damage compensation" is not directly used in the articles. The concept of "compensation for damages". Article 120 of the General Principles of the Civil Law stipulates: If a citizen's right to name, portrait, reputation, or honor is infringed upon, he or she has the right to demand that the infringement be stopped, that the reputation be restored, that the impact be eliminated, that an apology be made, and that compensation for losses be made. The compensation losses stipulated here include compensation for mental damages.

Eight special chapters stipulate civil liability

There are different opinions on whether civil liability is an independent chapter. The main reason for opposing the establishment of an independent chapter is that it is theoretically unsystematic and inconsistent with the entire civil law. The main reasons for supporting the establishment of an independent chapter are: first, the establishment of an independent chapter on civil liability improves the status of civil liability, is conducive to strengthening the protection of civil rights, and is easy for people to understand; second, the nature of responsibilities and obligations are different, and there is no problem in theory to separate responsibilities . At the "General Principles of Civil Law" symposium in December 1985, some judges said that the court welcomed this chapter because it could solve the problem of no legal basis in practice.

The liability for breach of contract stipulated in this chapter is not limited to liability for breach of economic contract. It is comprehensive in content. Some provisions can better reflect the requirements of the commodity economy. There are more differences when discussing civil liability. The big question is whether the principle of fault liability applies to liability for breach of contract? One opinion holds that the principle of fault liability does not apply to liability for breach of contract. Except for force majeure, everyone who breaches the contract shall bear liability. Another opinion is that liability for breach of contract also applies to the principle of fault liability. Article 106 of the "General Principles of Civil Law" stipulates three paragraphs. Later, scholars understood this article differently. Some scholars believe that from a comprehensive analysis of the contents of the three paragraphs, liability for breach of contract is fault liability, while some scholars believe that it is strict liability.

The continuation of the concept of statute of limitations and changes in content

The "General Principles of Civil Law" draws on the concept of statute of limitations in the "Soviet Russian Civil Code" but does not draw on the extinguishing statute of limitations in the "German Civil Code" concept. Referring to the Civil Code of the Soviet Union, there is no statute of limitations for acquisition. The content of the statute of limitations stipulated in the "General Principles of Civil Law" is different from that of the "Civil Code of the Soviet Union". The "Civil Code of the Soviet Union" stipulates that requests by state organizations for the return of state property illegally occupied by collective farms, other cooperative organizations, social groups or citizens , the statute of limitations does not apply (Article 90, paragraph 1, item 2). The General Principles of Civil Law does not provide similar provisions. There are no different opinions on this issue in the drafting.