(1) General principles
The general principles of civil law include some important systems of civil law, and learning this part well is the basis of in-depth study of civil law. The main contents of this part include:
1. The essence of civil law. By understanding the origin of civil law, we can effectively grasp the essence of civil law, understand the concept and characteristics of civil law, and then have a correct understanding of China's civil legislation. The so-called civil law refers to the sum of legal norms that adjust the property relations and personal relations of equal civil subjects in civil activities.
2. The adjustment objects and principles of civil law. Defining the adjustment object of civil law is the basis of understanding the important departmental law of civil law, and also the premise of understanding the system structure, adjustment principle and various systems of civil law. Civil law has its specific adjustment object, that is, the property relationship and personal relationship between equal civil subjects. The principle of civil law adjustment is the basic principle of carrying out the purpose of the Constitution, embodying the spirit of civil law, standardizing civil activities and guiding civil trials. Mastering the adjustment principle of civil law is helpful to better understand various civil systems. When reviewing the adjustment principles of civil law, candidates should combine other contents of civil law and have a deep understanding. Especially the principle of good faith, which is regarded as the "imperial principle" of civil law, candidates should accurately grasp its basic meaning and its embodiment in the basic system of civil law.
3. Civil legal relations and civil legal facts. As far as civil legal relationship is concerned, candidates are required to master the concept, characteristics, basic classification and constituent elements of civil legal relationship. In particular, candidates should have a clear understanding of the elements of civil legal relations. As far as civil legal facts are concerned, candidates are required to focus on the concept and significance, basic classification and the meaning of each classification of civil legal facts.
4. Citizen (natural person) and legal person system. First of all, we must master the concept and essence of citizens; Secondly, the civil rights capacity and civil conduct capacity of citizens and legal persons are the key contents that candidates should master. Especially when reviewing, candidates should pay more attention to the classification of civil capacity, the different characteristics and comparison of civil capacity, civil capacity and legal person's civil capacity. Others, such as the guardianship system, the system of declaring disappearance and death, the establishment, alteration and termination of individual industrial and commercial households, rural contracted households, individual partnerships and legal persons, are also the key contents of this part.
5. Civil legal acts. Civil juristic act is the core content of civil law and civil law, with many knowledge points. Candidates should focus on this part when reviewing. This part mainly includes: the concept and characteristics of civil juristic acts, the classification and forms of civil juristic acts, the effective conditions of civil juristic acts, the concepts of conditional and time-limited civil juristic acts, invalid civil acts and modifiability, and the concept and elements of revocable civil act. When reviewing this part, candidates should first accurately grasp the relevant concepts. Such as the concept and composition of changeability and revocable civil act. When reviewing this part, candidates should first accurately grasp the relevant concepts. For example, for a changeable and revocable civil act, candidates should be able to accurately remember its concept and characteristics, understand its difference from invalid civil acts, and grasp its legal effect and legal consequences after being revoked.
6. institutions. Agency refers to a civil legal system in which an agent acts with a third party in the name of the principal within the scope of agency authority, and the legal consequences are directly borne by the principal. Candidates should pay attention to accurately grasp the concept of agency and understand the legal characteristics of agency according to this concept. Others, such as the scope and types of agency, the right of agency and its exercise, the concept and effect of unauthorized agency, and the agency by estoppel system, are the key contents of this part.
7. Limitation of action. It mainly introduces the concepts, types and nature of prescription and prescription, its effectiveness, the difference between prescription and acquisitive prescription, the difference between prescription and scheduled period, its significance, its types, its beginning, suspension, interruption and extension, the concept of period and the calculation of diseases.
8. Civil liability. It mainly introduces the concept, characteristics, imputation principle, classification and form of civil liability. The types of general tort liability and special tort liability, the constitutive requirements of civil liability for breach of contract, the way to bear it, and the exemption reasons for civil liability for breach of contract are all the contents that candidates need to master.
(2) part of the property law
The main contents of property law mainly include the types and systems of property rights, the basic principles of property law, ownership, other property rights, * * * ownership and adjacent relations.
1. The concept and characteristics of real right. Property right is the right of the right subject to directly control a specific object and enjoy its benefits according to law. The legal characteristics of real right can be illustrated by the comparison between real right and creditor's right.
2. Types of real rights. For the types of real rights, candidates should master the basic composition of the real rights system and the conceptual characteristics of various real rights, as well as the types of real rights determined by Chinese laws.
3. Civil law protection of real right. The similarities and differences between real right method and creditor's right method should be mastered by candidates. Candidates also need to master five methods of civil law to protect property rights: the concept and applicable conditions of requesting the return of the original thing, requesting the removal of obstacles, requesting the elimination of danger, requesting restitution, and requesting compensation for losses. In addition, we should also master the concepts, characteristics and differences between self-help and public relief.
4. The concept and characteristics of ownership, the content of ownership, that is, the meaning of ownership power, the limitation of ownership, the original acquisition of ownership, the method of derivative acquisition and the reasons for the elimination of ownership are all the contents that candidates should master. The concept, significance and conditions of bona fide acquisition system are also important contents of this part.
5. Other property rights. The concept, characteristics, conditions of establishment or acquisition, and rights content of various real rights are the key contents of this part. In particular, candidates should pay special attention to the state-owned land use right, land contractual management right, mortgage right, pledge right, lien and so on.
6.*** Yes. * * * refers to the civil legal relationship in which a certain property belongs to two or more people at the same time. Candidates should master the concepts and characteristics of * * *, * * and * * *, as well as the rights and obligations of * * * *.
7. Adjacent relationship. Candidates should master the concepts, characteristics, handling principles and specific handling requirements of several major adjacent relations in practice.
(3) part of debt law
Debt law and property law are two important branches of civil law. In the debt law, there are many basic principles and systems that candidates should be able to accurately grasp.
1. The concept and types of debt. Debt is a civil legal relationship between specific people requiring specific actions. The subject, content and object of debt are the three elements of debt, which candidates should understand. Candidates should focus on the different classifications of debts and the legal significance of various classifications.
2. The occurrence, alteration and elimination of debts. Candidates should grasp that the relationship between debts can occur due to legal facts such as contract, infringement, unjust enrichment and negotiorum gestio. The change of debt includes the change of the content of debt and the change of the subject of debt; The main reasons for the elimination of debts are performance, cancellation, offset, escrow, exemption and confusion.
3. unjust enrichment. Unjust enrichment refers to losing other people's property and gaining their own interests without legal or contractual basis. The constituent elements of unjust enrichment and the handling of unjust enrichment debt are the key contents of this part.
4. negotiorum gestio. Negotiorum gestio refers to the act of managing affairs for others without legal or agreed obligations. The constituent elements of negotiorum gestio and the handling of negotiorum gestio debt are the key contents of this part.
5. Part of the contract law. There are many contents in this part, and candidates should focus on: the concept and types of contracts; The concept of contract conclusion, the concept of offer, the difference between offer and invitation to offer, the effectiveness of offer, the effective time of offer and the reasons for its invalidity; The concept of commitment, the way and time of commitment, and the withdrawal of commitment; The time and place of the establishment of the contract, the meaning of liability for negligence in contracting, the constitutive conditions of liability for negligence in contracting and the provisions of the contract law on the causes of liability for negligence in contracting; The performance of the validity of the contract, the validity of the contract concluded between a person without capacity and a person with limited capacity, the validity of the contract concluded between an unauthorized agent and an apparent agent, the validity of the contract concluded between the legal representative and the person in charge exceeding their functions and powers and disposing of the property of others without the right to dispose of it; The concept, principle and content of contract performance, the right of defense, the creditor's subrogation and the right of dissolution in the performance of bilateral contracts; The meaning of contract change and the conditions for contract termination; The concept and types of contract guarantee, the concept and setting of guarantee, two ways and effects of guarantee, the nature of deposit, the types and effects of deposit, and the difference between deposit and advance payment; The concept and characteristics of various contracts, the rights and obligations of the parties to the contract, and so on.
(4) individual rights
The main content of personal rights is the characteristics and types of personal rights.
1. Concept, characteristics and types of personal rights. Personal rights refer to the civil rights that are inseparable from the person and have no direct property content. It is the most basic civil right of civil subject and the premise of other civil rights. Its main feature is that it has no property content and does not directly reflect property rights and interests, but it is closely related to the property rights of the right subject and inseparable from the people of the right subject. Personal rights include personality rights and identity rights. The main difference is that the way of obtaining rights is different, the subject is different and the object of rights is different. In addition, we should understand the similarities and differences between personal rights and human rights.
2. Right of personality. The types of personality right mainly include life right, body right, health right, name right, name right, portrait right, reputation right and privacy right.
3. Right to identity. The types of identity rights mainly include honor rights, spouse rights and parental rights.
(v) Intellectual property rights
Intellectual property rights include copyright, patent right and trademark right.
1. The concept and characteristics of intellectual property. Intellectual property refers to the rights enjoyed by the creator of creative intellectual achievements or the owner of industrial and commercial trademarks according to law. It has three characteristics: exclusiveness, regionality and timeliness. Intellectual property rights include copyright, patent right and trademark right. We should also grasp the role of the intellectual property system.
2. The subject of copyright includes the author and others. Candidates should know the ownership of copyright under several special circumstances. The object of copyright is the work. Candidates should master the concept and scope of the work and the objects that are not protected by China's copyright law. The contents of copyright include personal rights and property rights of works, and candidates should master the specific contents of personal rights and property rights of works, as well as the acquisition time and protection period of copyright. Copyright restrictions include fair use and legal permission of works. Candidates should master the situation of fair use and legal permission. Neighborhood right is the right enjoyed by the disseminators of works. Candidates should master the contents of various neighboring rights. The behavior of copyright infringement and its legal responsibility are also the contents that candidates should master.
2. Patent right. Candidates should master: the subject and object of patent right; Substantive and procedural conditions for granting the patent right; Duration, invalidity and termination of the patent right; The content of patent right and its protection.
3. Trademark rights. Candidates should master: the conceptual role of trademarks; Type of trademark; The principles, substantive conditions and procedural conditions of trademark registration; Duration and renewal of trademark rights; Procedures and requirements for the transfer, license and change of trademark rights; Disputes, invalidity and termination of trademark rights; The scope of protection of trademark right, the types of trademark infringement and the legal liability of trademark infringement.
(vi) Inherited part
1. The concept, types and basic principles of inheritance system. Inheritance refers to the legal system that legally transfers the personal legal property owned by deceased candidates to others. The main types of inheritance are statutory inheritance and testamentary inheritance, standard inheritance and subrogation inheritance. In addition, candidates should have a basic understanding of the five basic principles of China's inheritance system.
2. Inheritance right. Candidates should master the concept of inheritance, the exercise of inheritance, the situation of losing inheritance, the way to give up inheritance, the protection of inheritance, the concept and scope of inheritance.
3. Legal succession. Candidates should master the concept, characteristics and applicable conditions of legal inheritance, the scope and succession order of legal heirs, the difference between subrogation inheritance and sub-inheritance and its applicable conditions, and the principles and methods of inheritance distribution of legal inheritance.
4. testamentary succession. Candidates should master the concepts and characteristics of wills and testamentary succession, the applicable conditions, the scope of testamentary succession, the difference between testamentary succession and statutory succession, the effective conditions of wills, the ways of revocation and alteration of wills, the concepts and characteristics of bequests and bequest support agreements and their differences from testamentary succession.
5. Disposal of the estate. We should master the starting time of inheritance, the scope of notification, the scope of inheritance, the principles and methods of inheritance division, the scope of inheritance debts, the principles and methods of repayment of inheritance debts, the handling of inheritance without inheritance and the handling of "five guarantees" inheritance.
Second, the difficulties in the review of civil law
The characteristics of civil law are mainly embodied in strong theory, strong system and many knowledge points. As mentioned above, the focus of civil law course is not only reflected in which chapters. It can be said that the knowledge points listed in the exam guide and exam outline are the focus of the exam. Candidates should review accurately, comprehensively and deeply. Only in this way can they pass the exam smoothly. The so-called difficulty refers to the part that the examinee is more intuitive and easy to understand, and it is the knowledge point that the examinee can't grasp well when reviewing. It needs in-depth thinking and comprehensive analysis to master it thoroughly. Of course, because candidates have different personal abilities, relatively different people have different difficulties. Judging from our teaching experience, the following questions may be the difficulties that most candidates encounter in reviewing.
1. Adjustment principle of civil law. Candidates may feel vague or simple when reviewing this part of the content. But this problem is not only the focus that candidates should review, but also a problem that most candidates may find difficult to master. When reviewing the adjustment principles of civil law, candidates should not only understand the meaning of each principle, but also understand other systems in civil law, such as contract law and tort law.
2. Alterable and revocable civil acts. Alterable and revocable civil acts are different from invalid civil acts and civil acts with undetermined effect. Candidates should be able to accurately understand the difference between the two. It should also be noted that the modifiable and revocable civil acts recognized by Chinese laws include not only two categories recognized in the General Principles of the Civil Law: civil acts committed due to gross misunderstanding and civil acts committed due to obviously unfair, but also contracts recognized in Article 53 of the Contract Law that one party made the other party enter into against its true meaning by means of fraud, coercion or taking advantage of others' danger.
3. agency by estoppel. Agency by estoppel is a special form of unauthorized agency, which means that the unauthorized agent has no agency, exceeds the agency or terminates the agency. A civil act committed in the name of the principal objectively makes the third party believe that he has the right of agency. The core of agency by estoppel system is to make some unauthorized agency behaviors produce the consequences of authorized agency. Candidates should pay attention to the constitutive conditions and legal effect of agency by estoppel when reviewing this content.
4. Comparison between real right and creditor's right. Property right and creditor's right are two basic property rights in civil law, and they are closely related. Property right is the basis of creditor's rights and the result of creditor's rights movement, but they are completely different. Candidates should be able to grasp the differences from the aspects of nature, scope of rights, object of rights, effectiveness of rights, occurrence of rights, and ways of protecting rights.
5. The power of ownership. Ownership is all kinds of measures and means that the owner can take to realize his exclusive interests in property within the scope prescribed by law. The power of ownership includes positive power and negative power. Positive power includes possession, use, income and disposal, while negative power is the power to exclude others' interference. One or more positive rights of ownership can be separated from the owner to form other property rights, but it does not lead to the elimination of ownership. The core of ownership is dominance. Candidates should be able to understand the relationship between ownership power and ownership.
6. Bona fide acquisition system. Acquisition in good faith, also known as instant acquisition, means that the possessor has no right to dispose of the movable property of others. After illegally transferring another person's movable property to a third person, if the assignee obtains the movable property in good faith, it will acquire the ownership of the movable property, and the original owner of the movable property may not ask the assignee to return it. Acquisition in good faith is a way of original acquisition of chattel ownership. The necessary conditions for bona fide acquisition include the requirements for the subject matter, the acquisition method and bona fide acquisition. Candidates should pay special attention to the fact that the bona fide acquisition system is only applicable to movable property transactions.
7. The difference between liability for fault in contracting and liability for breach of contract. Liability for negligence in contracting and liability for breach of contract are two completely different liability systems. The liability for fault in concluding a contract refers to the liability for damages borne by one party to the other party because of its own fault when concluding a contract, which leads to the failure, invalidity or cancellation of the contract. The liability for breach of contract is the legal liability that the parties should bear according to law when they fail to perform the contract. Candidates should pay attention to the differences in different constitutive requirements and forms of responsibility, especially in case analysis questions, and candidates should combine cases to judge whether it is the responsibility for contracting negligence or breach of contract.
8. Validity of the contract. The validity of the contract is the most important content in the contract law, and it is also the content that the exam will inevitably involve. The difficulties are: first, the relationship between the establishment and effectiveness of the contract. The establishment of the contract is the premise of its effectiveness, but the effectiveness of the contract is not the inevitable result after the establishment of the contract. As long as it meets the requirements of the contract, the contract is established, but after the contract is established, whether the contract will take effect depends on whether the contract meets the requirements of the contract. Second, the relationship and difference between valid contracts, changeable and revocable contracts, contracts with undetermined validity and invalid contracts. According to the effective conditions of contracts, established contracts can be divided into valid contracts, changeable and revocable contracts, contracts with undetermined validity and invalid contracts. Any contract that meets the effective conditions of the contract is a valid contract. On the contrary, according to the specific circumstances, it is a contract that can be changed and dissolved, a contract with undetermined validity and an invalid contract. In particular, candidates should accurately grasp the conditions for the entry into force of the contract, the conditions for changing the revocable contract and the contract with pending validity and its legal consequences.
9. Uneasy right of defense. The significance of establishing the system of uneasy right of defense by law lies in truly protecting the creditor's rights of the party who performs the debt first. It means that in a bilateral contract, when the party who performs the debt first finds that the property condition of the party who performs the debt later has deteriorated, which may endanger its creditor's rights, the party who performs the debt later has the right to refuse to perform the debt first before providing guarantee. While understanding the right of uneasy defense, candidates should perform the right of uneasy defense and pay attention to the conditions for exercising the right of uneasy defense.
10. specific provisions of contract law. Sub-clauses of contract law involve many different contracts, with many contents, which are generally difficult for candidates to master. When reviewing this part, candidates should have a clear understanding of the nature of various contracts, the elements of establishment and entry into force, the rights and obligations of the parties, and the liability for breach of contract. For example, sales contracts, candidates will generally have a more intuitive understanding, but they should have a clear understanding when they encounter some specific problems. Among them, such as the seller's warranty responsibility for defects. Defects liability includes goods defects liability and rights defects liability. Candidates should be clear about its specific meaning and form of expression. For another example, China's contract law distinguishes different sales contracts, and the conditions for their establishment and entry into force and the rights and obligations of the parties may be different. Candidates should also be aware of these differences. Another example is the gift contract, when the gift contract will take effect, and under what circumstances the donor can terminate the contract. These are all issues that candidates should pay special attention to. In short, candidates should pay special attention to some special legal issues in various contracts on the basis of a general understanding of the concepts and characteristics of various contracts when reviewing. These questions are indicated in the exam guide and exam outline.
1 1. subrogation inheritance and inheritance. Subrogation inheritance and transfer are two special phenomena in inheritance. Subrogation inheritance refers to the situation that the decedent's children die before the decedent, and the decedent's children inherit the decedent's property and legal system instead of the decedent's children. The conditions for its establishment are: there must be two facts of death; Subrogation inheritance people must be descendants of the children of the decedent; It must be that subrogation inheritance people have not lost their inheritance rights; It only applies to legal succession, not to testamentary succession. Inheritance refers to the legal system that after the death of the decedent and before the division of the estate, the heir who has not given up the inheritance right also dies and his share of the estate is transferred to the heir. Its establishment conditions are: there must be two facts of death; When the heir dies, the decedent's estate is not divided; The necessary heirs did not lose or give up their inheritance rights. When reviewing this part, candidates must distinguish the relationship between different subjects and the different conditions applicable to each system.
12. General tort liability and special tort liability. The particularity of the so-called special tort liability lies in the particularity of its constituent elements. Candidates should not only grasp the constitutive requirements of general tort liability, but also accurately grasp the constitutive requirements of various special tort liabilities. For example, the civil liability for damage caused by animals belongs to no-fault liability, and its constituent elements are: the factual need for raising animals to cause damage to people; Impairment of the objective existence of facts; There is a causal relationship between animal injury and damage consequences. At the same time, candidates should also grasp the exemption of this responsibility, that is, if the injurer can prove that the damage caused by the animal is caused by the fault of the victim, or the damage caused by the animal is caused by the fault of a third person, the animal breeder and manager can not bear civil liability.
Third, the mistakes in the civil law examination.
Generally speaking, the mistakes in civil law examination are mainly the distinction between some confusing legal concepts and the understanding of some related legal systems. Candidates should be good at comparing those related concepts or systems when reviewing, and deeply understand the meaning of related concepts and systems through comprehensive analysis. The following are the places where candidates often make mistakes in exams.
1. Civil legal acts and civil acts. These two concepts are both related and different. Candidates should pay attention to the fact that civil legal acts are only one kind of civil acts and legal acts; Civil acts include not only civil legal acts (legal acts), but also invalid civil acts, changeable, revocable civil act and civil acts with undetermined effect (illegal civil acts).
2. Conditions for the entry into force of civil juristic acts. The effective conditions of a civil juristic act include the qualification of the actor, the true will of the actor, the legal content of the act and the legal form of the act. However, the absence of these conditions does not mean that the act is invalid, but it may also be a changeable and revocable civil act or a civil act with undetermined effect. When reviewing this content, candidates can understand it in combination with the relevant provisions of the Contract Law.
3. Conditional and time-limited civil juristic acts. A civil juristic act with conditions and a time limit is not an act that takes effect only when the conditions are met and the time limit is up. Conditional conditions can be effective conditions or dissolution conditions; The attached period can be the effective period or the termination period. Candidates should judge the nature or duration of the conditions according to the actual situation.
4. Agents and representatives. An agent is different from a representative of a legal person. The representative is determined according to the law, he is a part of the legal person, and his meaning is the meaning of the legal person; Agent and principal are two different legal subjects, and the generation of agency right is based on authorization or legal provisions.
5. The difference between the limitation of action and the limitation period. Limitation of action and limitation period are two completely different concepts in law, and their legal consequences, time limit, application basis, application conditions and starting time are different. Candidates should pay attention to their differences and be able to distinguish which is the limitation of action and which is the scheduled period in combination with the provisions of the law.
6. Suspension, interruption and extension of the limitation of action. The suspension, interruption and extension of the limitation of action have different legal meanings, and candidates should accurately understand their different concepts and different applicable conditions.
7. Offer and invitation to offer. An offer is different from an invitation to offer. An offer is an expression of intention sent by one party to another party to conclude a contract with the other party. An invitation to offer is an expression of the parties' intention to make an offer to themselves. When analyzing whether the expression of will is an offer or an invitation to offer, it depends on whether the expression of will is aimed at a specific person, whether the expression of will has the purpose of concluding a contract, and whether the content of the expression of will is specific.
8. Right to personality and identity. Personality right and identity right are collectively called personal rights, which have different meanings. Personality right is a kind of civil right enjoyed by citizens and legal persons as civil subjects, and identity right is a kind of civil right owned by citizens and legal persons according to certain behaviors or their relationships. Candidates should not only understand their different meanings, but also know the different types they contain. For example, whether the right of honor is the right of personality or the right of identity is a question that candidates should pay attention to.
9. The theme of copyright. Generally, the subject of understanding copyright includes the author, but it is easy to ignore the subject of copyright including people other than the author. However, people other than the author must meet certain conditions to become the subject of copyright, and candidates should accurately grasp these conditions. For example, generally speaking, the copyright of job works is not enjoyed by legal persons or unincorporated units. Only in two cases, except the author's right of signature, other rights of copyright are enjoyed by legal persons or unincorporated units. These two situations include: first, works of engineering design, product design drawings and their descriptions, computer software, maps and other jobs created by using the material and technical conditions of legal persons or unincorporated units and undertaken by legal persons or unincorporated units; Second, laws, administrative regulations or contracts stipulate that copyright shall be enjoyed by legal persons or unincorporated units.
10. Will and Heritage Support Agreement. Wills and bequests are similar to maintenance agreements, but they are completely different in nature. Their differences are as follows: first, the will is a unilateral civil legal act, and the legacy support agreement is a legal act of both parties; Second, the will is a legal act that takes effect after death, and the legacy support agreement takes effect when it is established; Third, the will is a free legal act, and the legacy support agreement is a paid legal act; Fourth, the legacy support agreement takes precedence over the will. When the contents of the will conflict with the legacy support agreement, the will is invalid. Fifth, the scope of testamentary heirs is limited to legal heirs, and the dependents in the legacy support agreement can be citizens or collective ownership organizations, and there is no legal support relationship with the legatee.
1 1. Relationship between agency and entrustment contract. The entrustment contract is stipulated in the contract law, but it is closely related to the agency system in the general principles of civil law. When reviewing, candidates should combine the contents of these two parts, analyze and compare them, and make clear the relationship between agency and entrustment contract. In particular, it should be pointed out that agency authorization is a unilateral legal act. As long as there is the authorization of one party, there will be an agency, and the agency may also be based on the provisions of the law. The entrustment contract is a legal act of both parties, and it can only be established if the consciousness of both parties is consistent. According to the entrustment contract, the agency right may be generated, but the rights of the trustee are not necessarily the agency right. What the trustee obtains according to the entrustment contract is the right to handle the entrusted affairs, which includes legal acts and non-legal acts, while agency acts can only be legal acts.