On my country’s Civil Code System

Content summary: Systematization and systematization are the inherent requirements of the Civil Code. Procedural provisions that only apply to individual partial civil relations, or that are subject to change, or that lie at the intersection of public law and private law, or that are highly technical, should be stipulated in separate laws. Our country's civil code system should adopt the German Pandekton model, and the general provisions should be constructed based on the elements of legal relationships, and the sub-provisions should be developed based on the content of legal relationships, that is, civil rights. The sub-provisions should be general provisions on personality rights, family law, inheritance law, property rights, general principles of creditor's rights, and contract law; after the sub-provisions on civil rights, there should be a tort liability section that protects various civil rights.

Keywords: Civil Code system, separate laws, general provisions on legal relations, sub-provisions on tort liability, etc.

The so-called system of the Civil Code regulates the relationship between equal subjects and has inherent organic connections. The rule system can also be said to be a logical system that organically combines various rules of civil law in the civil code. Systematization and systematization are the inherent requirements of the Civil Code. In the modern sense, the code of law, as the highest form of written law, is a code that pursues systematization and strict logic. The "Civil Code" that lacks systematicity and logic can only be called a "compilation of civil laws" and cannot be called a civil code. The systematization of civil law helps to fully implement the basic values ??of civil law in the entire civil code system, such as equality, good faith, private law autonomy, maintaining transaction security, etc., and at the same time helps to reduce and eliminate conflicts between civil legal systems and contradiction. Integrate various legal systems into an organic whole, thereby establishing an internally harmonious and consistent civil norm system. A civil code constructed according to a scientific and complete system will make it easier to comply with and apply civil law norms.

On December 22, 2002, my country’s first draft Civil Code was submitted to the Standing Committee of the National People’s Congress for review. This draft stipulated eight sections in addition to the general provisions, namely: property rights, contracts, personality rights, and marriage. , adoption, inheritance, tort liability, and the application of laws in foreign-related civil relations. One of the most controversial issues regarding this system is which individual civil laws should be included in the Civil Code. I think the relationship between the Civil Code and individual civil laws should be considered from the following aspects:

First, The Civil Code stipulates basic and universally applicable rules for various civil activities. The Civil Code stipulates the basic rules for civil society life. It is the most common and basic civil legislation in the entire national civil legislation system. However, social life is ever-changing and complex, which requires a large number of separate laws to adjust various civil relations. However, not all of these individual civil laws need to be incorporated into the Civil Code. Only the most basic rules that are generally applicable in social life should be stipulated in the Civil Code, and those highly technical rules that only apply to individual and local civil relations should not be stipulated in the Civil Code but should be stipulated in the Civil Code. It is solved by separate laws. For example, the property law mainly solves the relationship between people's possession, use, income and disposal of property in the property rights. This is a rule that is generally applicable in the market economy. However, the trust law only adjusts the trust relationship and is not universal. The relationship arises under special circumstances and is a special rule of property law. Therefore, the property law should be included in the Civil Code, and the trust law should be a separate law outside the Civil Code.

Second, the systems and rules established by the Civil Code should maintain strong stability. As the highest form of statutory law, the Civil Code must maintain the greatest degree of stability and cannot be frequently revised or abolished. This stability is the basis for the Civil Code to achieve the stability of social relations and the predictability of people in social life. . Some of the Civil Code is even a summary of the rules that have been followed in human market activities for thousands of years. As for those legal rules that often change with social and economic life, they should be stipulated by special civil laws. For example, many rules on property rights and creditor's rights in the Civil Code are legal reflections of transaction relationships and have strong stability.

Specific rules related to intellectual property rights are constantly changing and developing. If all kinds of highly technical intellectual property rights rules that are constantly changing to adapt to the development of social economy and culture are included in the Civil Code, it will undoubtedly hinder the stability of the content of the Civil Code.

Third, the Civil Code mainly adjusts those basic civil legal rules in the field of private law. As for the legal rules at the intersection of public law and private law, such as labor law, insurance law, social security law, etc., because they themselves are not They are purely civil legal rules, but reflect the nature of strong state public power intervention, so separate legislation should be formulated. For example, German scholars call labor law "special private law." The reason is that labor law is not a completely pure private law, and the conclusion of labor contracts is not based on complete freedom of contract. The state often needs to make a lot of interference. .

Fourth, the Civil Code mainly stipulates the transaction rules of entities and makes principle provisions on procedural issues that are closely related to the rules of entity transactions. For example, the real estate registration rules can make some principle provisions in the property law. stipulations, but those very trivial, specific and highly technical procedural stipulations should be stipulated in separate laws. For example, intellectual property law involving specific procedural rules related to patent and trademark registration should not be stipulated in the Civil Code. In this sense, I think that because the adoption law involves a large number of specific procedural rules, most of which are strict restrictions on adoption conditions made by the state based on the interests of the public, some scholars believe that the adoption law There is a certain reason why it should not be included in the Civil Code.

How to construct the system of my country’s Civil Code is a matter of great controversy in theory. In just a few years, Chinese scholars have successively proposed plans for the design of the future civil code system, and fierce debates have started around these plans. I believe that when constructing the system of our civil code, we must first adopt the German Pandekton model and divide the civil code into two parts: general provisions and specific provisions.

(1) General Provisions of the Civil Code

Although some scholars currently oppose the establishment of general provisions, I believe that it is necessary to establish general provisions of the Civil Code. Because the establishment of general provisions enhances the formal rationality and system logic of the Civil Code. The content of the general provisions is established by the method of "extracting common factors". The establishment of general provisions can avoid duplication of legal provisions and make the code more concise. The establishment of general principles is more in line with the requirements of the civil and commercial integration model. The establishment of general principles plays an important role in promoting the basic spirit and concepts of civil law. The General Principles are to use abstract principles to declare the basic concepts of civil law. The provisions of the General Principles are more abstract, more inclusive, and flexible, making it easier for judges to make interpretations. The system structure of the General Principles also helps to cultivate legal practitioners’ induction, deduction, and abstraction. Methods of thinking and the ability to formulate legal principles. *1

The question is, how should we construct the specific content of the general principles? When considering the content of the General Provisions, I think we should learn from the German model and adopt elements of legal relationships to construct the General Provisions. A great contribution of the Pandekton School is to use the elements of legal relations as the skeleton of the general provisions system of the Civil Code. "The creation of the general provisions of the German Code of Laws was of great significance. At that time, German legal scholars believed that: There is also a need to establish general legal provisions for the different matters of legal relations. "*2 In other words, the Pandekton School applied the entire theory of legal relations to the code and constructed a complete civil law. Classic architecture. Specifically, the subject, behavior, and object systems are established in the general provisions, and then the content of legal relationships is established in the sub-provisions. This content is mainly civil rights, specifically including creditor's rights, property rights, relatives, and inheritance rights. When the subject, behavior, and inheritance rights are established in the general provisions, The combination of actions, objects and rights in the rules constitutes a complete legal relationship. For example, the subject, behavior, object and property rights system in the general principles are combined to form a complete property rights legal relationship. Since all the elements of a legal relationship are present to form a complete legal relationship, this structural model reflects the rigor and scientific nature of the Pandekton system.

If we want to adopt Pandekton’s basic idea of ??formulating the civil code system, then the general principles should be constructed according to the elements of legal relationships, and at least the following contents need to be stipulated: First, the main system. A subject is a natural person or legal person who enjoys civil rights and assumes civil obligations. The civil subject system is a stipulation on the necessary civil rights and civil capacity for independent subjects including natural persons, legal persons, etc. It is a legal reflection of the parties to the commodity relationship. Civil subjects mainly include natural persons, legal persons, partnerships, etc. Second, the object. The object is the object to which civil rights and obligations are directed. According to the systematic thinking of conceptual jurisprudence, several elements should be separated from the constituent elements of the object stipulated by law, and these elements should be generalized to form category concepts, and through different levels of typing, concepts of different levels of abstraction should be formed, and Hence the system is formed. *3 The main reason for stipulating the object system in the General Provisions is that the General Theory of Civil Law of my country has abstracted the concept of legal acts in the General Provisions, and the objects that are the constituent elements of legal acts should and can be abstracted. Establish abstract object concepts that can cover objects developed in the future. Because the object itself is a concept of development, with the rapid development of science and technology and changes in social life, intangible property rights are rapidly expanding. Recently, some scholars believe that, such as pensions, employment opportunities, business licenses, subsidies, political franchise rights, etc. All belong to the category of property rights. *4 Therefore, the term object of rights covers a very broad scope, which requires making the concept of object more inclusive. Third, behavior, civil legal behavior is also called legal behavior, which refers to the behavior of civil subjects aimed at establishing, changing, and terminating civil rights and civil obligations, with expression of intention as the content. As a general provision in the general principles of civil law, the civil legal system and its related theories occupy an important position in modern civil law theory; although our country does not recognize the theory of property rights and does not recognize marriage as a contractual act, the civil legal system is still very important. Extensive. As an abstraction of concepts, this system not only governs specific rights-establishing behavioral rules such as contract law, will law, and adoption law, but also forms a unique legal adjustment system in civil law that is different from the legal system. It can adjust the behavior between subjects, and can cover many new forms of transactions and regulate them; it also summarizes a series of exquisite concepts and principles in civil law in a complete and systematic theoretical form, forming an eye-catching part of the theory. independent field. *5 Fourth, civil liability. Civil liability is the result of failure to perform civil obligations and is also a sanction for failure to perform obligations. There has been a heated debate in the academic circles as to whether the civil liability system should be stipulated in the general provisions. Some scholars suggest that my country's "General Principles of Civil Law" has a separate civil liability system, so the civil liability system should be stipulated in the general principles. I think it is impossible for the General Provisions to provide detailed and comprehensive provisions on the specific content of civil liability, because neither contractual liability nor tort liability is part of the General Provisions, but the content of the separate provisions. Although the General Provisions should not stipulate specific rules of "civil liability", it is necessary for the General Provisions to stipulate the general concepts and principles of civil liability, because on the one hand, the concept of general civil liability stipulated in the General Provisions determines the particularity of civil liability, because civil The concept of responsibility is appropriate only if it is stipulated in the General Provisions, and it should not be stipulated in any other part outside the General Provisions. On the other hand, it is logical that the General Provisions stipulate civil liability after stipulating the subject and object of legal relationships and briefly enumerating various civil rights. Since infringements will be divided into separate sections, there should be corresponding systems in the general provisions that are compatible with those in the sub-provisions. In addition, there are some inconsistencies between tort liability and breach of contract liability, such as the principle of liability, exemption conditions, criminal incidental civil liability, the relationship between civil liability and criminal liability, liability forms, etc. These should be set out in general provisions in the General Provisions.

(2) Regarding the sub-provisions of the Civil Code

If the Pandekton school of thought is adopted to construct the entire civil code system based on the elements of legal relationships, then the content of legal relationships should be used That is, civil rights are used to develop a system of rules.

It is also in line with the logical sequence to first enumerate various civil rights in the sub-provisions of the Civil Code, and then stipulate protection measures for civil rights, that is, the tort liability system.

Notes:

1. Wang Zejian: "General Principles of Civil Law", China University of Political Science and Law Press, 2001 edition, page 26.

2. Chen Qiyan: "Basic Issues in Relatives and Inheritance Law", Taiwan Sanmin Book Company, 1980 edition, page 3.

3. Larenz's "Legal Methodology", page 356.

4. Lawrence M. Friedman, The Law of The Living, The Law of The Dead: Property, Succession, and Society, 1996 Wis. L. Rev. 340.

5 , see Dong Ansheng: "Civil Legal Behavior", Preface, China Renmin University Press, 1994 edition.

About the author: Born in 1960 in Xiantao, Hubei Province. Member of the Financial and Economic Committee of the Ninth National People's Congress Standing Committee, Vice Dean of the Law School of Renmin University of China, and member of the "Civil Law Drafting Group".