Let's talk about the knowledge system within civil law first.
Bürgerliches Recht (civil law) is a law that regulates the general social life between private individuals and is a general law of private law. "The main contents stipulated in the civil law are the subjects of rights and obligations (natural persons and legal persons), property relations (centered on ownership, contracts and various transactions), identity relations (centered on marriage and family system) and changes in rights and obligations." [1] Therefore, the research of traditional civil law mainly focuses on the general principles of civil law, property law, the relationship between debts (mainly contract law and tort law), relatives law and inheritance law. In the past, there were generally three compulsory courses in studying civil law, namely, general principles of civil law, property law and debt law, all based on this basic point of view. However, I believe that due to the development of the theory of civil liability and legal relationship in modern society, tort law as a separate compulsory course should also be paid attention to and studied. At the same time, with the expansion of personality right in recent years, personality right law has gradually become an independent discipline. Connecting with our own real life, from the perspective of normative content, these should indeed become the most important "common law" in the field of private law. An interesting phenomenon is that the national education department recently named the subject of civil law as "civil and commercial law"; The court system also changed all the so-called "economic courts" into "civil courts", which was actually "overkill" the popular concept of "economic law" at that time. The national education department calls civil law civil and commercial law, which is intended to emphasize that the content of commercial law is not necessarily the "economy" or "adjustment object" of economic law, but should be clearly included in the learning scope of civil law. [2] Naturally, the theory of civil law and civil and commercial law has no two sides.
German jurist radbruch (1878- 1949) said, "Commercial law is based on the essence of individualism in private law and is designed for those extremely selfish and intelligent people who are good at identifying their own interests and pursuing their own interests without scruple." Therefore, "at least in the legal era of individualism, commercial law has always played a pioneering role in general private law and deep charging." [3] What's more, since 1894, the German scholar Jakob Riesser (1853- 1932) has written "The Concept of Commercial Law in the Draft German Civil Law and Its Influence" and put forward "The Commercialization of Civil Law" [4] (Komuerzialiscerung des. However, learners who focus on specific systems think that commercial law has the nature of public law: "In commercial law, there are many provisions of public law, such as registration procedures and various penalties in company law and penalties in insurance law, which make commercial law form public law." [5] This seemingly contradictory phenomenon is actually the same: great freedom leads to extreme anxiety, which needs to be abstracted in essence to facilitate social, economic and trade exchanges; The convenience of economic communication poses a certain threat to transaction security, order stability and public interests. Commercial law develops and changes between individuals and society. In fact, in the theory of liberalism or individualism initiated by enlightenment thinkers such as Locke and Hume, under the big social background, private rights have never been "absolute", but they are defined as "rights" when discussing the starting point or "standards" of problems, which are called individualism or liberalism. Only in this sense can we understand radbruch's assertion: "Commercial law and labor law constitute the two poles of modern private law, namely individualism and society" [6]. Of course, after the promulgation of the Swiss Civil Code, after a long and repeated discussion on the integration of civil and commercial law, the situation that commercial law is a general law of private law did not appear, and the danger that civil law became a "special law" of private law was basically eliminated. But this phenomenon reminds us that even when studying traditional civil law, it is indeed indispensable to study and pay attention to commercial law.
The concept of Recht der wirtschaft was advocated by German scholars. Around the First World War, with the high concentration of capitalist economy, a large number of exclusive or joint economic forms such as "cartel", "trust" and "Kangzeren" appeared, which not only harmed the interests of other competitors and consumers, but also threatened the democratic and free economic competition order. Therefore, many countries have adopted the policy of actively intervening and controlling the economy, which has led to some legislation on economic supervision. In addition, some people think that the growing of this huge economic organization will eventually affect the social foundation of civilian politics. This is the social background of the concept of economic law. However, because this idea of state intervention in economy is incompatible with the spirit of capitalist freedom, although it played a certain role in wartime economy, the clear concept and status of economic law have been in some uncertain state. Professor radbruch said, "Whether economic law is a new legal field or just an application of legal thinking method in various fields is debatable." [7] However, in the socialist countries in the period of economic transition, this idea of national economic regulation has played an important role and promoted the great development of economic law in these countries. Fortunately, because the "independence" of economic law lies in the "special law on enterprises and their economic behaviors that promote economic development" [8], it intersects with the civil subject system, enterprise organization and activities in commercial law (especially company law), which affects the GAI nature of commercial legal system, and because it cannot be distinguished from commercial law in essence, economic law tends to "return" to civil and commercial law.
In addition, most scholars have established the legal status of anti-monopoly law and competition restriction law, which are the core contents of economic law, from the perspective of social public interests. But in my opinion, although the anti-monopoly law and the anti-unfair competition law use public power to interfere with civil subjects and their market behavior, their value goal is still to pursue the free and true will expression of other civil subjects and the effective individualistic competition order formed from it. Article 1 of the Anti-monopoly Law of the People's Republic of China (23rd draft) recently drafted by the Ministry of Commerce explains the purpose of "anti-monopoly", that is, "this Law is formulated to stop monopoly, safeguard fair competition, protect the legitimate rights and interests of operators and consumers and the interests of the public, and ensure the healthy development of the socialist market economy." Article 3 of the draft specifically lists the situations in which monopoly is prohibited as follows: "It refers to the following acts that exclude or restrict competition, harm the rights and interests of other operators or consumers, and endanger the public interests: (1) agreements, decisions or other coordination acts between operators; (two) the behavior of business operators abusing their dominant market position; (3) Excessive concentration of enterprises; (4) Abuse of administrative power by the government and its subordinate departments. " It can be seen that the value pursuit of anti-monopoly law (that is, economic law related to competition order) also embodies the "private law spirit" contained in civil law. Explaining these is not to "grab territory" with economic law, on the contrary, it is intended to show that the study of economic law is closely related to civil law, and even inseparable, which is what we want to study; At the same time, it is also a new perspective for us to observe and understand economic and social problems.
There is a view that there is still a kind of "social law" between public law and private law, such as the above-mentioned economic law, trade union law, labor law, social insurance law and social security law. This legal view holds that public law pays attention to the state, private law pays attention to individuals, and social law pays attention to society itself. The resulting study of relevant jurisdictions can also be called "social law". Professor Medicus believes that the substantive difference between private law and public law lies in: in private law, free decisions that do not need to be explained usually dominate; In public law, it is those constrained decisions that dominate. Moreover, there will be exceptions only in the case of abuse of rights. On the other hand, there is no need to separate the constrained part of private law and call it "social law" alone. As a result, "it is probably difficult to determine whether there are some clearly defined parts in private law. Because in private law, there is also supervision and review of abuse of rights everywhere. " [9] This formulation of social law is different from the "sociology of law" (sociology of law) or "social law" (sociology of law) in the sense of law schools that we often say. The emergence of social law is the result of national social policy after the intensification of socialization. Take social insurance as an example to illustrate the emergence of this social law. 1845 Prussian industrial law established the compulsory labor insurance system, which is the beginning of social insurance legislation. 1883, the bloody prime minister Karl Otto Edward Leopold von Bismarck (18 15- 1898) introduced Krankenversicherungsgesetz in Germany, and the Law on Work Injury Insurance was promulgated the following year. 1988 promulgated a new law to help public servants and soldiers in disasters. To 1889, the law on endowment insurance for the disabled (Invalidit? The foundation of German social insurance law. In western countries, Germany has always been conservative, paying attention to national and social interests, so this social insurance policy was basically established at the end of 19. Comparatively speaking, most other western countries were introduced in the first half of the 20th century. Social insurance in France originated from comprehensive social insurance such as sickness insurance, maternity insurance, disability insurance, old-age insurance and death insurance held by 1930, but initially it did not include unemployment insurance and work injury insurance. However, since then, it has gradually increased, and all the compensation for work-related injuries after resigning over 65 years old has been included in social insurance. In Britain, 19 12 implements national health insurance and unemployment insurance, and 1925 implements national contributory pension. After World War II, these insurances were integrated into "National Insurance", and 1946 promulgated the National Insurance Law in August. The Social Security Law did not appear in the United States until 1935. In addition to subsidizing states to carry out unemployment insurance, the federal government also carries out insurance for elderly survivors and disability (ASDI) nationwide. Japan implemented the Health Insurance Law in June 1 927+1October1; Since then, crew insurance (1939) and employee annuity insurance (1942, now changed to "health welfare annuity") have also been implemented one after another. [ 10]
At this time, China is in the midst of frequent wars, and the government is unable to implement these social welfare policies. After the founding of New China, under the planned system, everything depends on the unit and the government, and there is no need for social insurance. Since the reform and opening up, especially with the establishment of the goal of market economy, it is necessary to establish a social security system including social insurance throughout the country. In fact, these social policies involve employment contracts, insurance contracts, damages, etc., which are the basic contents of civil law, except for some special provisions. [1 1] It is precisely for this reason that the national education department explicitly incorporated the labor law and social security law into the study of civil and commercial law. I remember when I 1999 graduated from Peking University with a master's degree, I had already made such a complicated remark on my diploma: "Civil and Commercial Law (including the research direction of labor law and social security law)". Whether in the past or now, labor law and social security law exist in many universities and research institutions as part of economic law. From another perspective, anti-monopoly and anti-unfair competition are actually just an economic policy and should be regarded as a social law. Of course, it will take some time to straighten out these relationships, but it is only a matter of time. Even if there are some ambiguities, it is an indispensable part of civil law to study their contents.
Environmental law and science and technology law are two unique disciplines. As a branch of civil law, there is nothing wrong with the ownership and utilization of natural resources, environmental infringement and relief. In order to maintain the sustainable development of society and the interests of the public, the third chapter of the Environmental Impact Assessment Law of the People's Republic of China [1 2], which was implemented on September, 2003, stipulates some social obligations for the construction unit, which does not hinder the nature of private law itself. Recently, we put forward a proposal to formulate the Law on the Development, Utilization and Protection of Climate Resources in People's Republic of China (PRC), believing that climate resources are also a kind of natural resources that can be utilized. [13] However, many of these related norms are administrative norms. Moreover, there are many problems in litigation (especially class action), which are mixed. This is what we need to have a clear understanding when we understand environmental law. At the same time, the national education department officially named this subject "Environmental and Natural Resources Protection Law" (? ), its purpose is to protect the deteriorating natural resources, ecosystems and environment.
When discussing scientific, technical and legal issues, all governments aim at freedom of scientific research and promoting the development of their own science and technology. 1993 promulgated the "People's Republic of China (PRC) science and technology progress law" to promote the development of science and technology. Recently, when I was studying the legal system construction of the national medium-and long-term scientific and technological development plan, I suggested that the Basic Law on Science and Technology of People's Republic of China (PRC) should be considered. However, whether this proposal is adopted or not, a new concept of development that integrates the basic rights and free development of human beings into the framework of national scientific and technological development and national security will gradually penetrate into our social life and will be satisfied in the near future. For example, I think that even on issues involving national security, we should establish a big concept of scientific and technological security and development. For example, with regard to national information security, we should break through the narrow connotation of the traditional negative information security concept, focus on the balance between various interests, that is, the interests of individuals, society and the state, and establish a positive information security concept and information security guarantee concept, just like the information security concept of the Russian Federation in 2000 [14]. From a macro point of view, the integration of civil rights, information industry, openness of government affairs and information system related to information security and information security guarantee not only conforms to the characteristics of the development of information society, but also embodies a new value orientation facing the rights era. This change is reflected in the guiding ideology of national information security policies and laws, that is, from the past "management law" to a legal guarantee system combining management, guidance and service. In fact, there are technical crimes in the development of science and technology. However, because there are not many specialized legal issues (mostly technical issues), the promulgation of the SME Technology Promotion Law, the National Scientific Research Organization Law, the Venture Capital Fund Law, and the Regulations on Scientific and Technological Innovation, as well as network infringement, electronic contracts, genetic privacy and other issues, are actually extensions of the civil and commercial system. As a national social policy to promote scientific and technological progress, it can also be included in the pedigree of "social law". Regrettably, however, the national education department has brought this discipline into the scope of administrative law, and other issues about technical evidence have also been brought into the procedural law. This consideration is probably because the early teaching and research of science and technology law mainly focused on some administrative regulations and policies. But in recent years, the research of science and technology law is gradually changing this phenomenon.
Intellectual property law is a new discipline in recent years. At present, people no longer argue whether intellectual property rights have the characteristics of "state grant" and administrative law, and basically establish that their rights are private rights and civil rights. However, the administrative review (especially some substantive review) and procedural norms involved do make people who study civil law feel some unsuitable or incomprehensible phenomena. Recent research mainly focuses on two diametrically opposite directions: first, it emphasizes the integration of intellectual property rights and traditional property rights, and tries to establish a new property rights system including intellectual property rights; First of all, it emphasizes the uniqueness of intellectual property law and tries to find the independence of intellectual property law from the object, content, method and value orientation of rights. In addition, there is another issue that has aroused great concern from the government and enterprises, that is, the intellectual property development strategy of the country or enterprise. This problem is more related to the national policy to promote the development of science and technology and industry, and should be studied by science and technology law (or social law). The words of a government official can vividly illustrate the relationship between the two. The Ministry of Science and Technology is chatting with two officials in China National Intellectual Property Administration. A person from the Ministry of Science and Technology said: "If China lacks scientific and technological innovation, weak industrial technology development and few patent applications, the State Council will hit our board; If our intellectual property legal system is not perfect and there is a problem with patent application review, then the State Council will hit your board. " Although this statement does not necessarily conform to the principle of the rule of law, it is roughly the same.
Although great progress has been made in the research of intellectual property law in the field of property and trade under the impetus of the World Trade Organization (especially due to the influence of TRIPS), the identity nature of intellectual property rights should not be ignored by scholars more and more. Moreover, due to the characteristics of intellectual property in property law and identity law, it is more in line with the classification and research methods of traditional civil law, and intellectual property law has always been a research direction under the specialty of civil and commercial law. It is true that intellectual property law scholars (especially some scholars of Peking University Intellectual Property Institute) recently proposed that intellectual property law should be regarded as a two disciplines under law, independent of civil and commercial law (the Intellectual Property Research Institute of China University held in Shanghai recently also issued an initiative and appeal to the whole country), and even Shanghai put forward the strategy of "prospering the city with intellectual property", trying to regard intellectual property as a discipline alongside the first-class discipline of law. However, this discipline departmentalism is incompatible with the national or local development strategy.
From the perspective of international law, the legal application of foreign-related relations in civil communication is usually called "private international law". Among them, its basic norm is the conflict of laws norm. In the current discussion on the formulation of China's civil code, this issue has also been discussed more. The recent development trend of centralization of private international law has two manifestations: one is to keep private international law as a part of the civil code and set up a special chapter; The other is to formulate a special code of private international law, that is, codification Mr. Han Depei suggested that it should be "compiled" and not included in the Civil Code, and presided over the drafting of the Model Law on Private International Law, with six drafts, including five chapters 166: General provisions; Jurisdiction; Law application; Judicial assistance; Annex [15] Internationally, Switzerland, Romania, Italy, Liechtenstein, Tunisia and so on have adopted this model. However, China's draft civil law submitted to the National People's Congress for deliberation from June 5438 to February 2002 did not adopt this proposal, which is also the legislative model adopted by many countries. Admittedly, there is a difference between legislation and subject research. This discussion does not affect that civil law must study it. Personally, I think, "From the specific content, private international law includes three parts: law application, jurisdiction and recognition and enforcement of foreign judgments, which are the basic norms applicable to civil law. It is for this reason that most of the early private international law legislation was scattered in the civil code or a separate civil and commercial law. Even today, there is a trend of centralization in the field of private international law, and one of the legislative forms is still to set up a special chapter in the civil code, such as the new civil code X, 199 15438+08, which came into effect in Louisiana, USA, and 1992. [ 16]
After listening to my point of view, you may feel that there is a little or even a lot of "disciplinary chauvinism" in it. In fact, I just want to explain that in the knowledge system within the discipline of civil law, the content to be studied is very extensive. Moreover, in fact, I only explained the knowledge structure of civil law from a cross section. If we look at it vertically, it also includes the legal history (especially Roman law) that we are used to seeing as a historical category. The history of private law is not only a part of the knowledge system of civil law, but also a methodological knowledge. From my personal point of view, the internal knowledge structure of civil law includes at least the following five aspects only from the cross-section or plane. Of course, it must be pointed out that this division does not mean that there is such a distinct knowledge system within civil law, and there are inevitably phenomena that cross each other or drift outside this framework. The purpose of this division is to highlight the direction and perspective of related disciplines from the perspective of civil law, and provide a reference and even critical coordinate for sorting out civil law knowledge. That's all!
First, the traditional civil law
(1) Introduction to Civil Law
(2) personality right law
(3) Kinship Law
(4) Inheritance Law
(5) Property Law
(six) the general principles of the debt relationship law
(7) Contract Law
(8) Tort law
(nine) the application of law in foreign-related civil relations
Second, commercial law.
Introduction to commercial law
(2) Company Law
(3) Negotiable Instruments Law
(4) Insurance Law
(5) Financial Law
(6) Securities Law
(7) Maritime Law
Three. Intellectual property law
(1) Overview of Intellectual Property Law
(2) Patent Law
(3) Copyright law
(4) Trademark Law
Fourth, economic law.
(A) the basic theory of economic law
(2) Anti-monopoly Law
(3) Anti-unfair Competition Law
Verb (abbreviation for verb) social law
(A) the basic theory of social law
(2) Labor Law
(3) Social Security Law
(4) environmental law
(5) Science and Technology Law
(The first draft was written in June 2003165438+1October 65438+February in Wuhan; Revised and finalized in Beijing on February 28th, 65438)
About the author: Yi, male, a professor at Huazhong University of Science and Technology Law School, a postdoctoral researcher at the Institute of Law, Chinese Academy of Social Sciences, and editor-in-chief of the editorial department of Private Law. E-mail :yijiming@263.net.
[1] Shi Qiyang: General Principles of Civil Law, Taipei: Sanmin Publishing Company, June 2006, 1, 10, p. 1.
[2] In the past, scholars in Taiwan Province Province of China almost formed a general view on the division of disciplines and research contents: "The commercial legal system refers to all laws related to commerce. Because business covers the economic life of all kinds of enterprises, some people use economic law instead of traditional commercial law, such as company law, negotiable instrument law, maritime law, insurance law, banking law, securities trading law and fair trade law, which are collectively called economic law. For example, Chinese mainland is. " See Commercial Law of Liu Yusheng, Taipei: Sanmin Bookstore Co., Ltd. 1998, the first edition was revised in March, p. 1.
[3] See [Germany] radbruch: Introduction to Law, translated by Mi Jian and Zhu Lin, Beijing: China Encyclopedia Publishing House, July 1997, p. 72-73.
[4] Der。 Uh, Fluss. A hamburger-shaped lichen covered the whole garden. Germany, 1894.
[5] Liu Xingshan: "Commercial Law", Taipei: Zhonghua Book Publishing Co., Ltd., first edition in March 2002, pp. 3-4.
[6][ Germany] radbruch: Introduction to Law, translated by Mi Jian Zhu Lin, Beijing: China Encyclopedia Publishing House, July 1, p. 76.
[7][ Germany] radbruch: Introduction to Law, translated by Mi Jian Zhu Lin, Beijing: China Encyclopedia Publishing House, July 1, p. 80.
[8] Kaskel，Gegenstand and Systematisher anf Bau des Wirtschaftser echts als rechts disziplirs and lehe fach。 JW。 1926. USA 1 1. ff，insbes S. 12。
[9] Participate in [Germany] Dieter? Doctor. Introduction to german civil law. Translated by Shao Jiandong. Beijing: Law Press, 2000.
[10] See He (Editor-in-Chief): Wu Yun Dictionary of Social Sciences, Volume 6? Law, Taipei: Taiwan Province Commercial Press, 1st edition, June 1999, p. 172.
[1 1] For example, Professor radbruch believes that the labor law is based on the ideological orientation of civil law. The civil law only stipulates specific contractors and specific labor contracts, and knows nothing about the unity of enterprises; Labor law is different from abstract civil law. It embodies people who are business owners, workers and employees, not only individuals, but also trade unions and enterprises. It is not only a free contract, but also a major economic power struggle that constitutes the background of the so-called free contract. Therefore, "the characteristics of the labor law are precisely here: closer to real life." See [Germany] radbruch: Introduction to Law, translated by Mi Jian and Zhu Lin, Beijing: China Encyclopedia Publishing House, 1, July, 0997, p. 80-8 1.
[12]20021October 28th, adopted at the 30th meeting of the Ninth NPC Standing Committee; On the same day, Presidential Decree No.77 was promulgated.
[13] This is the result of a sub-topic research report (chaired by myself) of the research group on legal system and policy of scientific and technological development in the national medium-and long-term scientific and technological development planning strategy, "the main task of China's scientific and technological legal system construction in the next 20 years". The team leader is Professor Luo Yuzhong; Sub-project speaker Wang Zhiqiang, senior engineer, Deputy Director of Policy and Regulation Department of National Meteorological Administration.
[14] This framework was adopted by the Security Council of the Russian Federation on June 23rd, 2000 and approved by Russian President Vladimir Putin on September 9th, 2000. The concept is divided into four parts *** 1 1, which is a programmatic document (or "concept document"). Although the framework is based on developing the domestic information industry and avoiding relying on foreign computers, telecommunications equipment and software, it actually realizes the provisions of the Russian Constitution on the inviolability of citizens' private lives, personal secrets and communication secrets in the information field. In the field of information security in western countries, it is generally necessary to link the protection of citizens' personal rights (such as privacy and freedom of speech) with the information security of government policies, the security of information systems and the development of information infrastructure, information technology and information industry. For example, Europe and the United States have been discussing legislation to protect personal data since the 1960s. It is particularly noteworthy that the United States released the White Paper "Personal Privacy and National Information Infrastructure" in June 1995+00, which comprehensively expounded the new idea of using market mechanism to protect personal privacy.
[15] See China Association of Private International Law: People's Republic of China (PRC) Model Law, Beijing: Law Press, August 2000,No. 1.
[16] yi: the study of private law as a whole, contained in yi (ed. ): Private LawNo. 1 Volume 2/ Volume 2, Beijing: Peking University Publishing House, March 2002,No. 1 Edition, pp. 28-29.
Yi Jiming Professor, Institute of Law, Chinese Academy of Social Sciences