The impact of the adoption of the latest "General Principles of Civil Law" on the civil law propositions of the judicial examination (required)

From birth to death, from signing contracts and doing business, to getting married, having children, inheritance and adoption, the common people's Everything is inseparable from civil law, so civil law is also called the encyclopedia of social life, which directly affects everyone's life.

The latest version of the "General Principles of the Civil Law" has made 126 changes, including 55 substantive changes, such as raising the controversial lower age limit for limiting civil capacity from six to eight; adjusting the liability of "good people" Allocate the burden of proof to reduce worries for emergency rescuers; adopt academic suggestions and restore invalid clauses that violate the mandatory provisions of validity. We also added clauses to protect the names, portraits, reputations and honors of heroes and martyrs based on the suggestions of some representatives

What impact will the newly added general provisions of the civil law have on the civil law propositions in 2017?

Aspect 1

Basic principles embody new development concepts

Basic principles are the basic norms that civil subjects should follow when engaging in civil activities and judicial organs conduct civil judicial activities. . The first chapter of the draft focuses on establishing basic civil principles and stipulates the legislative purpose and legal application rules. Based on the general principles of civil law, the draft combines more than 30 years of civil legal practice and establishes basic principles such as the principle of equality, the principle of voluntariness, the principle of fairness, the principle of good faith, the principle of law-abiding, and the green principle.

Green principles are included in the basic principles

Highlighting ecological and environmental protection is one of the highlights of this draft. In recent years, there have been repeated cases of film crews harming the ecological environment. The film crew of the movie "The Promise" built temporary buildings for filming, destroying some alpine meadows and alpine shrub vegetation around Bigu Tianchi, affecting the surrounding natural ecological environment. In the end, the crew was fined 90,000 yuan, and the deputy magistrate of Shangri-La County was removed from his post due to his leadership responsibilities. In the future, if similar incidents occur again, it will not only be necessary to stop the infringement and compensate for the losses, but also to restore the original status quo.

Article 8 of the draft stipulates: "Civil subjects engaging in civil activities should be conducive to saving resources and protecting the ecological environment." This provision not only inherits the concept of harmony between heaven, earth and man, but also between man and nature. my country's excellent traditional cultural concepts also reflect the new development concepts since the 18th National Congress of the Communist Party of my country, and are consistent with the national conditions that our country is a populous country and needs to deal with the contradiction between people and resources and ecology for a long time.

"Custom" has become the applicable rule of law

In some areas, the son-in-law has the obligation to support the elderly; during the auction, the auctioneer will customarily use the "three-ring auction method", " 1, 2, 3”, the deal is hammered down; in international trade, the term FOB has become a trading rule... These codes of conduct that are generally followed by everyone may be used as the basis for courts to judge cases.

This draft stipulates the rules for the application of civil laws: First, civil disputes should be handled in accordance with the law; if the law does not provide for it, customs can be applied and must not violate public order and good customs, that is, public order and kindness. custom. Second, if other laws have special provisions on civil relations, those provisions shall prevail. This also means that "custom" can also be used as a source of law in the future, allowing courts to apply local custom to hear cases when laws and regulations do not provide for it.

Why should “custom” be written into the General Principles of Civil Law? According to the person in charge of the Legal Affairs Committee of the Standing Committee of the National People’s Congress, “On the one hand, it is because our country has a vast territory and complex situations, and the law always lags behind reality. , It is impossible to cover everything, and the foresight ability of legislators is also limited. On the other hand, there is still room for application of some good folk customs at this stage. "The foresight ability of legislators themselves is also limited. On the other hand, from the perspective of the development of law itself, the earliest laws evolved from customs and originated from customs. He also emphasized that a prerequisite for the application of customs is that there are no provisions in the law. In this case, customs can be applied. In other words, custom is complementary to law.

Aspect 2

The civil subject of natural persons is more complete

Civil subjects are participants in civil relations, holders of civil rights, performers of civil obligations and The bearer of civil liability is also the basis for building the civil legal system. It is very important to clarify civil subjects and their rules, and natural persons are the most important and oldest civil subjects. This time, the draft has made many improvements to the natural person system based on the general principles of civil law.

Make it clear that the fetus has the right to inherit and receive donations

If the father dies before birth, can the fetus inherit the father's property? When the mother was pregnant, the fetus suffered physical harm , then after birth, can the child file an infringement compensation lawsuit to safeguard his rights? There is no basis for these in previous civil legislation, which also leads to the lack of corresponding basis for judges to judge cases in judicial practice, resulting in the legal protection of fetal rights consequences of deficiencies.

The draft specifically adds provisions to protect the interests of the fetus. Article 17 of the draft stipulates: "When it comes to the protection of the interests of the fetus such as inheritance and acceptance of donations, the fetus is deemed to have the capacity for civil rights. However, if the fetus is dead at birth, its capacity for civil rights does not exist from the beginning."

Lowering the age limit for limiting civil capacity

A first-grade elementary school student gave a pen to his deskmate. Will this behavior be legally recognized? When his parents divorce, will the judge Who should have custody based on the choice of an 8-year-old child? The solution to these problems depends on whether the child has the capacity for civil conduct.

In order to better respect the autonomous consciousness of minors, the draft lowers the age standard for minors with limited capacity for civil conduct based on their psychological and physiological development characteristics. Article 20 of the draft stipulates: "Minors over six years old are persons with limited capacity for civil conduct. When performing civil legal acts, they are represented by their legal representatives or with the consent or ratification of their legal representatives. However, they can independently implement civil laws for purely profit-making purposes. Acts or civil legal acts commensurate with their age and intelligence.”

Why is it set at six years old? Li Shishi, director of the Legal Affairs Committee of the Standing Committee of the National People’s Congress, explained that it is mainly due to the development of the economy and society. With the improvement of living and education levels, the physical and psychological maturity and cognitive abilities of minors have improved. Appropriately lowering the age will help them engage in civil activities commensurate with their age and intelligence, and better respect this group of minors. awareness of autonomy and protect their legitimate rights and interests. In addition, this adjustment also echoes the provisions of my country's Compulsory Education Law that children over six years old must receive compulsory education, and is easy to master and implement in practice.

Aspect 3

Solving the "air-to-air" problem of custody

Four left-behind children in Bijie, Guizhou, because their father had been working outside for a long time and their mother was abducted, Mass suicides at home; biological fathers sexually assaulting his daughters; disabled elderly people starving to death due to lack of care... In recent years, such tragedies have continued to occur, becoming a pain for the whole society.

As a legal system that protects the legitimate rights and interests of persons with limited capacity for civil conduct and persons without capacity for civil conduct, the guardianship system is critical to making up for the lack of capacity for civil conduct of civil subjects. However, as for the guardianship system, although it is covered in many of our country's current laws, it seems to be very complete from an institutional perspective. When one type of guardianship is lacking, it seems that other guardianships can be used to make up for it immediately. However, in actual operation, many guardianship systems cannot be implemented. This is also the biggest problem that has always existed in our country’s guardianship system.

In view of the outstanding problems existing in the current guardianship system, the draft is based on family guardianship, supplemented by social guardianship, and supplemented by state guardianship. It improves the guardianship system and clarifies the custody and support between parents and children. obligations, expanded the scope of wards, strengthened the government's guardianship functions, and made clear provisions on the identification of guardians, the performance of guardianship duties, and the cancellation of guardianship.

Expand the scope of guardianship objects

With the arrival of an aging society, the supervision of more and more elderly people, especially the disabled elderly people, has become a problem. The current general principles of civil law only stipulate the guardianship of minors and mentally ill persons, while the guardianship of adults has always been a blank spot. This draft fills this gap, expands the scope of wards, and stipulates that adults who have no capacity for civil conduct or have limited capacity for civil conduct are also wards. This means that people with intellectual disabilities and adults who have lost or partially lost their cognitive abilities due to illness or other reasons are also included in the scope of wards. These adjustments will help protect the personal and property rights of people with intellectual disabilities and other groups, and will also help address the issue of population aging and better safeguard the rights and interests of the elderly.

It is worth mentioning that the issue of elderly care for families who have lost their only child has become a problem that many people are struggling with. Some parents of families who have lost their only child want to choose someone they trust as their guardian in the future, but they have no legal basis.

This time, Article 34 of the draft stipulates, “Adults with full capacity for civil conduct may consult in advance with close relatives, other individuals who are willing to serve as guardians, or relevant organizations to determine their guardians in writing. The guardian determined through consultation shall be the guardian of that person. When an adult loses or partially loses his/her capacity for civil conduct, he or she shall bear the responsibility for guardianship.”

Some experts explained that this provision clarifies the unique guardian decision method of the adult guardianship system-willed guardianship, that is, adult guardianship. When a person has normal intelligence, he or she can pre-select a trusted relative or social security institution as his or her guardian. When the person becomes old and his or her intelligence declines, the person he or she chooses will serve as the guardian.

In addition, in order to emphasize family responsibilities and promote traditional Chinese virtues, the draft also adds a provision: "Children have the obligation to support, care for and protect their parents who have no capacity for civil conduct or have limited capacity for civil conduct."

The civil affairs department "puts guardianship responsibilities at the forefront"

In February 2015, the first case in which the civil affairs department applied to revoke the qualifications of parents as guardians of their children was reported to the People's Court of Tongshan District, Xuzhou City The court holds public hearings. In the end, the court revoked the parents' custody rights over their daughter and designated the Xuzhou Tongshan District Civil Affairs Bureau as the child's guardian. This case became a typical case after the official implementation of the "Opinions on Several Issues Concerning Legally Handling Guardians' Infringements on the Rights and Interests of Minors".

With the enhancement of the country’s economic strength and improvement of its governance capabilities, many opinions believe that the state’s guardianship function should be strengthened, and when the guardian is absent, the government’s civil affairs department should promptly fill the position. This time, Article 33 of the draft stipulates: “If there is no person qualified for guardianship according to law, the guardian shall be appointed by the civil affairs department, or may be appointed by the residents’ committee or village committee of the place where the ward meets the requirements.”

Regarding this regulation, some experts said that it will encourage the civil affairs department to truly assume the responsibility of guardians and assume the responsibility of guardianship and supervision. Moreover, considering the future, nursing homes led by the government should exert greater power. Therefore, it is in line with our country's reality to let the civil affairs department assume corresponding guardianship responsibilities.

Improving the guardianship revocation system

In real life, bad incidents often occur in which guardians fail to perform their guardianship duties and commit acts that infringe on the interests of the ward. However, the current law only provides in principle: If a guardian fails to perform guardianship duties or infringes upon the legitimate rights and interests of the ward, he shall bear responsibility; if he causes property damage to the ward, he shall compensate for the loss. The court may revoke the guardian's qualifications based on the application of the relevant person or unit.

Article 37 of the draft details the specific circumstances for revoking the qualification of a guardian, including: committing behavior that seriously damages the physical and mental health of the ward; neglecting to perform guardianship duties, or being unable to perform guardianship duties and refusing to perform part of the guardianship duties. Or entrust all of it to others, causing the ward to be in a dangerous state; committing other acts that seriously infringe upon the legitimate rights and interests of the ward.

Then, the people's court can revoke the guardian's qualifications based on the application of the relevant individual or organization, arrange necessary temporary guardianship measures, and designate a new guardian in accordance with the law based on the principle that is most beneficial to the ward.

Strictly reinstate the conditions for revoked custody

In the "Nanjing child abuse" case that has attracted widespread attention, the boy's adoptive mother Li Zhengqin was sentenced to 6 months in prison. The court also held that Li Zhengqin was It will no longer be suitable to adopt or take custody of children for a long period of time in the future. However, according to media reports, after Li Zhengqin was released from prison, the boy was still willing to live with her and said, "I don't hate my adoptive mother, it's all for my own good." The investigators also said that "the child expressed his desire to see his mother to the prosecutor's office many times."

Based on this, the draft gives the original guardian the "right to repent." Article 39 of the draft stipulates, “After the parents or children of a ward have been revoked as guardians by the People’s Court, except for committing intentional crimes against the ward, if they have shown repentance, upon their application, the People’s Court may, upon their application, respect the true wishes of the ward. Under the premise that the guardian's qualifications will be restored depending on the circumstances, the guardianship relationship between the guardian appointed by the people's court and the ward will be terminated at the same time."

Aspect 4

Innovate the legal person system based on national conditions

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The legal person system is a basic system in civil law. With the development of my country's economy and society, new organizational forms continue to emerge, and the form of legal persons has undergone major changes.

In reality, various companies, partnerships, and sole proprietorships exist in large numbers and conduct a large number of market transactions. From the perspective of social and economic life, improving the legal person system is of great significance to promoting the development of the socialist market economy. It can be said that the legal person system is the legislative focus of this General Principles of Civil Law, and it is also the part that has received the most response from social opinions and changed the content since the first instance.

Innovate the classification of legal persons to meet the needs

The current general principles of civil law divide legal persons into four categories, namely enterprise legal persons, agency legal persons, public institution legal persons and social group legal persons. However, with the development of my country's economy and society, the classification of legal persons in the General Principles of Civil Law has been difficult to adapt to the new situation, and it is necessary to make adjustments and improvements.

In order to reflect the fundamental differences in the nature of different legal persons, strengthen the guidance, regulation and protection of various social organizations, promote their healthy development, and be consistent with the basic understanding of our people, the draft follows the General Principles of Civil Law Regarding the basic idea of ????classification of legal persons, in order to adapt to the requirements of the reform and development of social organizations, legal persons are divided into three categories: profit-making legal persons, non-profit legal persons and special legal persons according to the different purposes and functions of legal persons.

Granting legal person status to village committees and neighborhood committees

In view of the fact that the establishment and termination of some legal person organizations are quite special, if it is not appropriate to distinguish them according to for-profit legal persons or non-profit legal persons, based on reality If necessary, the draft specifically establishes a section on special legal persons, which stipulates that legal persons of government agencies, legal persons of rural collective economic organizations, legal persons of cooperative economic organizations, and legal persons of grassroots mass autonomous organizations are designated as special legal persons.

Rural collective economic organizations have distinctive Chinese characteristics and are a special economic system in our country. From the first instance to the third instance, there have been opinions calling for it to be explicitly given independent legal person status. Judging from the survey results, the opinions are also very consistent. The draft finally clearly gives it legal person status, which is in line with the relevant reform spirit of the Party Central Committee, is conducive to improving the implementation form and operating mechanism of rural collective economic organizations, and enhancing the vitality of rural collective economic development.

Although grassroots self-governing organizations such as neighborhood committees and village committees have their own legal status in the Constitution, the Organic Law of Urban Residents Committees, and the Organic Law of Villagers Committees, they have no clear civil legal status. The survey found that in reality, due to the lack of civil subject identity and status, many village committees are unable to engage in some civil activities when performing the functions of collective economic organizations, such as signing contracts, opening bank accounts, etc., which hinders the performance of public management affairs. In view of this, the draft clarifies that neighborhood committees and village committees have the legal person qualifications of grassroots mass autonomous organizations and can engage in civil activities necessary to perform their functions.

Point 5

Increase the scope of civil rights protection

Protecting civil rights is the core of civil law and an important task of civil legislation. The draft inherits the practice of the General Principles of Civil Law and sets up a special chapter to stipulate the types and contents of civil rights. This chapter aims to implement the requirements of the Party Central Committee to realize the legalization of civil rights protection and improve the property rights protection system, highlight respect for civil rights, and strengthen the protection of civil rights. As a sworn requirement, this also provides the basis for the specific provisions of civil rights in various sub-parts of the Civil Code and special laws on civil and commercial matters.

In terms of personal rights, the draft stipulates that the personal freedom and personal dignity of natural persons are protected by law; natural persons enjoy the rights to life, health, body, name, portrait, reputation, honor, and privacy rights, marital autonomy, etc.; in terms of property rights, the draft stipulates that the property rights of civil subjects shall be equally protected by law. Civil subjects enjoy property rights, creditor's rights, inheritance rights, equity and other investment rights in accordance with the law.

Added "Personal Information Protection" Clause

On August 19, 2016, Xu Yuyu, a student in Luozhuang District, Linyi City, Shandong Province, suffered a telecommunications fraud. Xu Yuyu was defrauded of 9,900 yuan and My father went to the police station to call the police together. On the way home, he became unwell and went to the hospital for emergency treatment. He died on August 21 after the emergency treatment failed. Once the incident was reported, the society responded strongly.

In view of the current situation of telecommunications fraud and Internet fraud, some people in the industry pointed out that although the new Consumer Rights Protection Law and the "Decision on Strengthening Network Information Protection" and other regulations have made some provisions for the protection of personal information, It did not play a corresponding role. "Personal information protection" should also be regarded as a civil right to solve the problems of telecommunications fraud and Internet fraud from the perspectives of civil and commercial law and tort law.

Considering that in the information society, the protection of personal information of natural persons is particularly important, and personal information rights are important rights enjoyed by citizens in modern society, the draft specifically makes targeted provisions. Article 114 of the draft stipulates: "Personal information of natural persons is protected by law. Any organization or individual shall ensure the security of personal information obtained in accordance with the law, and shall not illegally collect, use, process, or transmit personal information, or illegally buy, sell, provide, or disclose personal information." ”

Some people believe that the purpose of incorporating the protection of personal information into civil rights is to prevent the abuse of personal information. Once it is abused, the victims can defend their rights from the perspective of tort law.

Online virtual property is included in the scope of civil law protection

Since the 18th National Congress of the Communist Party of China, all plenary sessions of the Central Committee have emphasized the need to improve the protection of the property rights of civil subjects. The draft clearly stipulates that civil subjects enjoy property rights in accordance with the law, including ownership, usufruct rights, and security rights; the property rights of civil subjects are equally protected by law and may not be infringed by any organization or individual. At the same time, Article 120 of the draft stipulates: "For the needs of public interests, if real estate or movable property is expropriated or requisitioned in accordance with the authority and procedures prescribed by law, fair and reasonable compensation shall be given."

In order to To adapt to the development of the Internet and big data and reflect the times, the draft also specifically provides for the protection of online virtual property and data. Article 131 of the draft stipulates: “Where the law has provisions on the protection of data and network virtual property, those provisions shall prevail.”

The draft also strengthens the protection of intellectual property rights, stipulating that civil subjects shall have rights over works, Patents, trademarks, geographical indications, trade secrets, integrated circuit layout designs, new plant varieties and other intellectual achievements enjoy intellectual property rights in accordance with the law. Comparing the general principles of civil law, trade secrets, integrated circuit layout design, new plant varieties, etc. are all newly added this time.

Point 6

Encourage courageous acts of righteousness

When courageous acts of righteousness cause damage to recipients, they have to compensate for doing good deeds. In recent years, there have been many incidents in the bravery of righteousness. There are many typical cases. Therefore, during previous Standing Committee deliberations, some members of the Standing Committee have always raised the need to pay attention to this issue and requested that the law be clearly stipulated. In the future, the situation of "making heroes bleed and shed tears" and "being held accountable for failing to save lives" may be changed.

In order to encourage courageous acts of justice, Article 187 of the draft clearly stipulates that “if the rescuer causes damage to the recipient due to voluntary emergency rescue behavior, the rescuer shall not bear civil liability. However, the rescuer shall not bear civil liability for causing damage to the recipient due to gross negligence. If a person suffers serious damage that should not be caused by him, he shall bear appropriate civil liability.”

At the same time, Article 188 of the draft also stipulates: “If one is harmed by protecting the civil rights and interests of others, the infringer shall bear civil liability. If there is no infringer, the infringer has escaped or is unable to bear civil liability, and the victim requests compensation, the beneficiary shall provide appropriate compensation. ”

Point 7

The statute of limitations adapts to practical needs

In order to prevent legal rights from sleeping, the law stipulates the statute of limitations. The statute of limitations is a legal system in which rights holders are not protected if they do not exercise their rights within the statutory period. In view of the current major changes in social and economic activities, this draft makes major adjustments to the statute of limitations.

The general statute of limitations is planned to be increased from 2 years to 3 years

It is common for acquaintances to borrow money. However, after the money is lent out, due to human feelings, sometimes many people are embarrassed to ask for repayment and are unwilling to file a lawsuit. They feel that they can discuss it first. In this way, it is easy for several years to pass by without paying attention. . However, if according to the current General Principles of Civil Law, the general statute of limitations period is 2 years, and someone owes you money but fails to pay it back, you must take him to court within two years. Otherwise, the statute of limitations will be exceeded and you will not get what you deserve. protection.

As social life undergoes profound changes, transaction methods and types continue to innovate, and the relationship between rights and obligations becomes more complex. It is too short to require the right holder to exercise his rights within the 2-year statute of limitations and is not conducive to protecting the legitimate rights and interests of the parties. Unfavorable, it is necessary to extend it appropriately. At the same time, taking into account that the development of a modern market economy requires accelerated economic circulation, and the modernization of communication means has made it more convenient to exercise rights, leading to a trend of shortening the ordinary statute of limitations, the draft, after absorbing judicial practice experience, makes changes to the statute of limitations for civil actions, and will make the general statute of limitations shorter. The statute of limitations period has been extended from the current 2 years to 3 years.

Minors who are sexually assaulted can still "settle accounts" after they become adults

Some surveys show that the number of left-behind children in rural areas is constantly expanding, and affected by traditional social concepts, once these minors When a person is sexually assaulted, the victim's family feels very shameful. Many people are unwilling or afraid to publicly seek legal protection. Some victims begin to seek legal relief on their own as adults, but the statute of limitations often expires, even if the court accepts the case. , according to the current statute of limitations rules, it is impossible to obtain a winning judgment. As a result, the perpetrators of such cases can often escape legal punishment, causing the victims to regret for life.

In order to better protect the interests of minors who have been sexually assaulted and provide minors who have been sexually assaulted with the opportunity to seek legal relief when they become adults, the draft this time provides for cases where minors have been sexually assaulted. Important adjustments have been made to the rules for starting the statute of limitations for civil actions. Article 194 of the draft stipulates that “the statute of limitations for claims for damages for sexual assault by minors shall be calculated from the date when the victim reaches the age of 18.” This means that if a minor is sexually assaulted as a child, then Even if you did not assert your rights and hold the infringing party accountable at the time, you can still "settlement the accounts" after reaching the age of 18 and demand civil compensation from the infringing party.