As mentioned above, the interpretation of civil law has two meanings: broad and narrow. The narrow interpretation of civil law means that civil law has corresponding legal provisions on social life, but the meaning is unclear or unclear, or there are conflicts before and after. Therefore, the purpose of explaining this legal provision is to clarify the exact meaning of this legal provision, determine its connotation and extension, and then apply the law correctly.
1. Application of literal interpretation method
Literal interpretation, also known as literal interpretation, literal interpretation and liberal arts interpretation, is the most basic and preliminary interpretation. It explains the meaning and content of civil law norms according to the words, words and languages used in civil law norms. If "raising animals" is interpreted as animals raised artificially rather than in a natural state, it belongs to this category. Generally speaking, it is not enough to rely on literal interpretation in legal interpretation, and it is difficult to accurately explain the true meaning of the law. Other explanations are needed. However, literal interpretation is the premise of other interpretation methods. If the literal meanings of concepts and terms used in legal norms are not clearly explained, it is impossible to apply other interpretation methods.
Accurate, reasonable and strict literal interpretation can ensure the unity of the connotation and extension of the language used in legal norms, thus ensuring the predictability and stability of the application of the law, avoiding the phenomenon of different interpretations in the same language, thus avoiding the situation of different judgments in the same case, and also preventing judges and arbitrators from arbitrarily interpreting the law.
However, accurate, reasonable and strict interpretation of literal meaning depends not only on the personal professionalism of judicial personnel, but also on the theoretical level, research methods and theoretical interpretation of civil law scholars within a country. For example, China's "General Principles of Civil Law", "Contract Law" and other laws have stipulated force majeure, and made a preliminary explanation of its meaning in the legal provisions. However, what natural and social phenomena force majeure includes is not listed in the legal norms themselves, and how to determine its extension is controversial, such as whether it is government behavior, social unrest, animal and plant epidemics, technical risks, etc. It belongs to the category of force majeure and needs to be explained clearly in theory first.
The specific methods of literal interpretation are:
(1) Interpret according to the inherent meaning of language. Concepts, terms and other words in most legal provisions come directly from social life, and people have a common understanding of their meanings, so they should be interpreted according to this common meaning. Such as fraud, taking advantage of others' danger, ratification, reminders, etc.
(2) According to the prevailing theory or doctrine of a professional discipline. Concepts or terms from other disciplines or professional fields are often borrowed in legal provisions, so these concepts and terms must be interpreted according to the prevailing theory or doctrine of the discipline or professional field. For example, the General Principles of the Civil Law stipulates that natural persons acquire legal capacity from birth and lose legal capacity due to death, but what is "birth" and what is "death" is a medical concept and must be interpreted according to the general meaning of medicine. For example, in modern medicine, birth means that the baby can breathe independently without his mother, and death means that the heart of a natural person stops beating and the EEG disappears. For another example, the concept of "consumer" stipulated in the Consumer Protection Law comes from consumer economics, and its meaning refers to individual members who purchase products or receive services for personal consumption.
(3) Explain according to the specific meaning of legal terms. When words in daily life are used in the field of civil law and given a specific meaning, they can only be interpreted according to this specific meaning. There are many technical terms in this kind of civil law, which are important concepts to understand civil law norms. For example, "goodwill" in civil law cannot be interpreted as "goodwill" or "charity" according to its lexical meaning, but refers to "ignorance"; Similarly, "malice" in civil law does not mean "malice" or "malice", but "knowing". [ 1 1]
2. Application of system interpretation method
Systematic interpretation refers to the top-down interpretation of the connotation and extension of legal provisions according to their status in the legal norm system.
The characteristics and significance of systematic explanation lie in:
(1) takes the logical association of legal norms as the starting point of interpretation. Systematic interpretation focuses on the position of legal provisions in the whole legal norms and even the whole legal system, which can avoid splitting the internal logical connection between provisions and other related provisions, and then get a more consistent interpretation of legislative intent. For example, when the Guarantee Law stipulates the qualifications of guarantors, it is undoubtedly meaningful to make it clear that state organs may not act as guarantors. However, there is no provision on whether the houses and equipment used by state organs can be mortgaged in the mortgage guarantee, so there is doubt in this life. However, according to the legislative intention of prohibiting state organs from acting as guarantors, it can be interpreted that mortgage guarantee cannot be established for this kind of property, which is the result of institutional interpretation.
(2) It is conducive to overcoming the disharmony and conflict between legal provisions. The main function of institutional interpretation is to find the most reasonable judgment through institutional interpretation when several legal provisions are in conflict or disharmony, so as to avoid the offset of legal application effect and maintain harmony within the legal norm system. For example, as stipulated in Article 94 of the Contract Law, if one party explicitly expresses or shows by his own behavior that he will not perform the principal debt, the other party may terminate the contract, and Article 68 stipulates that if the party who should perform the obligation first has definite evidence to prove that the other party has transferred the property or withdrawn funds to avoid the debt, it may suspend the performance of the obligation. If one party finds that the other party has transferred the property to avoid the debt, and thinks that it is his own behavior that fails to perform the main debt, he proposes to terminate the contract in accordance with the provisions of Article 94, but the other party proposes to suspend the performance but not terminate the contract in accordance with the provisions of Article 68. According to the relationship between these two provisions in the general provisions, it can be interpreted as non-exclusive. The parties may exercise the right of uneasy defense according to Article 68 or the right of termination according to Article 94. The law gives him the right to choose, but the other party does not enjoy this right.
3. Objective To explain the application of the method.
(1) teleological interpretation is the highest realm of legal interpretation activities.
Legislation is a national activity representing the interests of the whole people and a conscious behavior of human beings. Any legislative activity has its purpose, which is ultimately embodied and implied in specific legal provisions, so legal provisions have their purpose. When the meaning of a legal provision is ambiguous, it is an ideal result if we can find out the original intention or purpose of the legislator when interpreting the provision, which can not only reflect the principle of centralized state power distribution in legislation, but also prevent the legislation from exceeding the judicial authority, and properly realize the legislative intention of the legislator through creative judicial interpretation activities, so as to facilitate people to understand the value orientation contained in the legislative purpose. The so-called purpose interpretation is an interpretation method to explain legal doubts based on the purpose contained and pursued by legal norms.
Objective interpretation is often applied when the methods of literal interpretation and systematic interpretation are still ineffective, and its interpretation difficulty and risk are greater than literal interpretation and systematic interpretation. The premise of objective interpretation is that the judiciary must understand the general values pursued by legislation and legal norms, such as fairness, justice, security and efficiency, and also understand the value pursuit corresponding to specific norms. For example, Article 54 of the Contract Law stipulates that a court or arbitration institution may not cancel a contract that can be changed or cancelled if a party requests to change it, but it does not stipulate whether a court or arbitration institution can change it if a party requests to cancel it on the grounds of obviously unfair. If the parties do not ask for changes, the court does not support the request for cancellation after hearing, but it considers it to be obviously unfair. Is it appropriate to change it? Explained from the legislative purpose, Article 54 stipulates that the court or arbitration institution that the parties request to change shall not be revoked, which is based on the value orientation of safety and efficiency, and does not easily deny the establishment of the relationship between transactions and rights and obligations. Inferring from this purpose, it should be interpreted that the court and arbitration institution can change.
Theoretically speaking, the purpose explanation can be divided into subjective purpose explanation and objective purpose explanation. The former emphasizes that legal interpretation should be based on explaining the real intention of legislators when making laws, and can not cross this boundary, otherwise the interpretation of laws may evolve into making laws; The objective purpose interpretation emphasizes that legal interpretation needs to explore not only the real intention of legislators, but also the reasonable purpose and social function of the law itself. When there is a contradiction between them, the reasonable purpose and social function of legal norms should be given priority. The essence of objective purpose interpretation is the constitutionality of legal norms, that is, the principle of constitutionality is the highest level standard for interpreting the effectiveness of legal norms. If the result of [12] interpretation conflicts with the Constitution, this interpretation cannot be adopted. Obviously, the objective purpose interpretation gives the judiciary too much freedom to interpret the law, which makes the legal interpretation too uncertain and risky, while the subjective purpose interpretation has too many constraints on the judiciary, and it is easy to fall into the quagmire of "evil law is also law". Therefore, an appropriate compromise between the two is the ideal state. For example, as stipulated in Article 74 of the Contract Law, one of the applicable objects of the right of contract preservation and cancellation is that the debtor transfers the property without compensation, causing damage to the creditor. Does the "free transfer of property" here include all acts of transferring property, especially the debtor's donation to public welfare undertakings? If the debtor owes the creditor a huge contract price, but donates it to charity, can the debtor request cancellation? Judging from the objective explanation, donation is a charitable act, which conforms to public order and good customs and should be protected. However, judging from the subjective interpretation, the legislative intention of this article is to prevent the debtor's property from being improperly reduced and causing damage to creditors. Donation is also an act of transferring property for free. The debtor's charitable behavior under the premise of refusing to perform his legal obligations is contrary to public order and good customs, and such behavior cannot be encouraged by law. Therefore, the "free transfer of property" in this article should be interpreted as follows.
(2) Expansion and limitation of teleological interpretation
When using the method of purpose interpretation, it is often necessary to make choices and judgments on the purpose of legal norms. The former is called purpose expansion or expansion interpretation, and the latter is called purpose contraction or contraction interpretation. A broad interpretation means that when the meanings of words and expressions used in legal provisions are too narrow or the specified items are too narrow to express the true meaning of legislation, their literal meanings are expanded to realize the true meaning of the law. For example, Article 63 of the General Principles of the Civil Law stipulates that "citizens and legal persons may carry out civil legal acts through agents." There is no provision on whether civil subjects other than citizens and legal persons, such as partnership enterprises, sole proprietorship enterprises and unincorporated organizations, can carry out legal acts through agents. At this time, an expanded explanation should be made to explain that unincorporated organizations other than natural persons and legal persons can also carry out legal acts through agents. Restrictive interpretation refers to narrowing the literal meaning of the words used in the provisions when their meanings are too broad or the specified items are too general, which violates the true meaning of legislation, so as to realize the true meaning of the law. For example, Article 52 of the Contract Law stipulates that a contract that "violates the mandatory provisions of laws and administrative regulations" is invalid, but the non-mandatory provisions of laws and administrative regulations are diverse and numerous, including many mandatory provisions that are purely government management means. At this time, we must make a restrictive interpretation of "mandatory provisions" and limit it to a few effective mandatory provisions based on social interests and public order and good customs, otherwise it will violate the legislation.
Therefore, expansion interpretation and contraction interpretation are not independent interpretation methods or rules, but different paths in the purpose interpretation method and different conclusions drawn from them. As scholars have pointed out: "In fact, what is enlarged or narrowed is the writing, which is based on the spirit of discovery, because the will of law lies in the spirit rather than the writing." [13] The methods of purposeful expansion and purposeful contraction to fill legal loopholes are different from these explanations, although the effect is the same.
4. Application of historical interpretation method
Historical interpretation refers to the interpretation of doubtful points in legal norms according to the specific historical conditions and background when the law was formulated, as well as the legislative materials that recorded and reflected such historical conditions and background, such as the draft before the law was formally promulgated, legislative reasons and other legislative documents. Also known as legal interpretation or evolutionary interpretation. The application of historical interpretation method should pay attention to the following aspects:
(1) The "history" here is a narrow historical concept, which only refers to the history of doubtful legal norms and legal provisions when they were formulated. In other words, it is neither the history of a country, nor the history of a country's laws, nor even the history of a certain legal department of a country, but the history of formulating specific laws at that time, which belongs to static history, not dynamic history. Historical interpretation is not to study the whole law from the vast history, but only to intercept a certain cross section of history, and its starting point is only the formulation time of doubtful legal norms.
(2) Historical interpretation methods need to examine the carrier of history, including both the draft laws and legislative reasons recorded in written form at that time, as well as the historical conditions and background at that time in the abstract sense. In our country, most of the early civil legislation after the reform and opening up lacks draft laws and legislative reasons, so it is more necessary to investigate the abstract "history". For example, the General Principles of the Civil Law stipulates "individual industrial and commercial households and rural contracted households" in the fourth quarter of Chapter II, but the provisions are few and very general. In practice, there are often doubts about what civil rights the "two households" enjoy, how to bear foreign debts, and how to determine whether to operate with personal property or family property. It is necessary to study the historical background when the General Principles of Civil Law was formulated, that is, China's reform and opening up has just begun, and rural areas have just implemented it.
(3) The application of historical interpretation method requires the legislature to adopt democratic legislative procedures as far as possible when formulating laws, and standardize legislative means, improve legislative techniques, explain legislative reasons, and save legislative materials, so that when there is doubt about legal provisions in judicial practice, the judiciary can draw reasonable conclusions by using historical interpretation method. In the final analysis, the historical interpretation method essentially belongs to the category of purpose interpretation. When interpreting the law, we need to study all kinds of legislative materials and background materials at that time in order to better realize the legislative purpose.
5. Application of comparative interpretation method
Comparative interpretation refers to the comparison between theories, precedents and relevant foreign legislation or precedents when interpreting doubtful legal provisions, in order to seek the true meaning of legal provisions. "Comparison" here means comparison in a broad sense, that is, all kinds of materials and information within the scope of legal knowledge, including theory, precedent, practice, extraterritorial legislation and so on. , described as follows:
(1) Explain the theory and theory of participation. If there are still doubts about the use of literal interpretation, systematic interpretation, objective interpretation and historical interpretation, or when the above-mentioned interpretation methods cannot be used, or when the above-mentioned interpretation methods are not needed, you can refer to the theories and theories about the disputed clauses. Learning theory is the soil for the development and perfection of legislation, and it should be incorporated into legal provisions, but a legal provision is relatively solidified and learning theory is changing. Due to the negligence of legislators or other reasons, the theory of science has not been adopted in legislation, and it is often helpful to analyze the doubts at this time. As the scholar pointed out: "After the law is enacted, when there is any doubt in its application, it is often explained by theory. Although this theory is not a legal source and is not legally binding, it is very important for the development of law and court trial. The main reason is the tradition of written law, and the application of legal interpretation needs theory to explain. Most judges are educated by law in universities and have long been influenced by scholars' views. "[14] For example, Article 58 of the Contract Law stipulates that property acquired as a result of a contract shall be returned after the contract is deemed invalid. However, the law is not clear whether the property acquired by a third party in good faith should also be returned. However, in this respect, it is generally believed that when the subject matter is regarded as movable property, the acquisition by a bona fide third party should be applied.
(2) Refer to explain the case. In China's non-case law countries, the precedent effect of precedent has not been recognized by legislation, but this situation does not prevent the interpretation with reference to cases when the legal provisions are doubtful and difficult to apply. Of course, in theory, if the case law is not recognized, the first case will not arise. How to explain it? But in fact, the Supreme People's Court has explained the application of some controversial legal provisions through cases according to the legislative spirit, academic theory and foreign legislative cases (such as the case of denial of corporate personality and trademark trust). ). This case, which was formally adopted by the Higher People's Court and published in a certain way, should be given the effect of precedent and let it participate.
(3) Interpretation by referring to foreign legislation. This is mainly because it is necessary for China's civil legislation to learn from foreign legislation or transplant laws. In this case, when some foreign legal provisions are in doubt, it is logical to refer to the legislation and precedents of relevant countries for interpretation. For example, in the contract law, there are norms such as anticipatory breach of contract, liability for contracting negligence, uneasy defense right and subrogation right of debt preservation. Of course, considering foreign legislation and precedents, it is undoubtedly inappropriate to combine the specific situation of China, and it is inappropriate to hit the point or mechanically apply it.
Although the above-mentioned methods or rules of civil law interpretation should be applied in turn in theory, in judicial practice, it is normal for judges and arbitrators to choose the most appropriate, appropriate and matching method or apply several methods at the same time according to the specific circumstances of questionable legal provisions and legal norms.