one, properly handle the relationship between the Basic Law and a single law
based on the existence of a large number of single law for civil legislation guiding ideology, then, is to develop the Civil Code still requires a single law in civil?
From a global point of view, we can see Napoleon in the formulation of the French Civil Code, it had three objectives: first, the only sacred to the Codex guidelines do not allow judges to create law, not even allow the judge to explain it; second, so that even the common code into an old woman able to read something; third is to code the time, even for quite some time all of the possible relationship between civil law are to regulate in detail. He has proven how much of the first two goals can be achieved, but his third goal is to run into a wall. French Civil Code, after the enactment of several decades or even centuries, the social and economic life and life
development is so fast, was considered to be perfect, but lost the Civil Code its all-encompassing nature.
reality from our point of view, of the Criminal Code to modify the completion of its Penal Code, to modify and cancel the provisions of the relevant analogy. It can be said, is to stage all of the Penal Code can be used as
crime of the act down exhaustive provisions. However, the future of the Civil Code is a package not be caged in all civil legal relations between the As the social and economic life, family life and the civil rights developments and rapid changes, especially in China's social transition, trying to detail all the provisions of the civil relations are embracing is not possible, and according to some countries and Taiwan's experience, and so on In civil law, not only does not eliminate, but also greater applied.
So, there is what needs to be incorporated into the Civil Code, there are things which method is most suitable as a civil-line it? 1986 closely related to a single law can be roughly summarized as ten categories: commercial and commercial enterprise law;
Intellectual Property method; contract law; marriage, family, inheritance; real estate law; special forms of legal transactions, such as auctions Law, Bidding Law,
Beats By Dre Studio, etc.; transaction security method, such as security law; special tort law, such as environmental law; high degree of integration of public and private law,
Salvatore Ferragamo outlet, such as state-owned assets law, the State Compensation Law and relevant national legal order; and traditional civil law countries, including the Civil Code can not be imported from the Anglo-American common law legal system, such as trust law. In these single law, we are sure into the Civil Code only contract law, security law, inheritance law and real property law. More controversial is a marriage and family law. Civil Code contains the history of the family provisions of civil law, civil law because of the adjustment
civil society relations, including two types of material: one is the survival of human material needs to meet their own economic relations; The other is to get human beings continue to make their own marriage and family relations. Relationship between these two types of adjustments are part of civil law between equal entities.
October Revolution the former Soviet Union after the victory, the first time marriage and family relations and labor relations out of the Civil Code, the Code and a separate family and marriage guardianship Labour Code, the main reason is that the two kinds of relationships are not commodities relationship category. 1923 Russian Civil Code is just the beginning of a new economic
policy of its adjustment range of
theory basis. China has always adopted the former Soviet Union after the founding of the legislative
mode . The early 1980s, when the third draft Civil Code, its legislative purpose and content of the draft as a marriage and family relations are the family provisions. 1986 Civil Code to avoid this controversy, but in the Therefore, when drafting the new Civil Code, Civil Code of the general practice of States should be like, into this part of the relationship among the Civil Code, in order to avoid such a misunderstanding: it seems to adjust our civil law only commodity exchange between equal entities and relationships. As for the other single law should retain its form of a single law, they should not be included as the Basic Law among civil code, prevent the formation of the
Second, drawing on foreign law, common law and absorption
there is case law for the soil, to take our country since the Civil Code of the civil law model of legislative style rather than adopt a advanced system of law, rules not only possible but necessary. Therefore, how the civil law code in the successful absorption of the common law experience is an urgent need to study and solve problems.
from the world trend, the civil law and common law are not incompatible. In some
International a unified legal documents, there are many successful precedents to the two together. For example, UNIDROIT, the We do not deny that the Second World War some countries and regions, especially
East some countries and regions, in civil law, commercial law, especially by the common law more and more influence, such as Japan, Korea and China Taiwan.
from the situation of our country, we
market economy of the legislation more and more factors to consider Hong Kong and the positive things in common law, contract law in the formulation of a unified process is fully illustrates this point. Since the reform and opening up has a high level of legal expertise abroad to study, but also the majority of the United States, the argument from the view held by scholars and experts, there are more and more common law than civil law trend . There are even some scholars advocate of civil and commercial legislation in the civil law model should be abandoned instead using the common law model is not limited to just using some individual common law system. If, when the Civil Law in 1986 formulated the debate is civil and economic law dispute, then, develop civil code today, this argument has little meaning, or there is not much controversy. Today, the main arguments developed Civil Code may be, the extent to which the use of common law model and how to apply the common law model of the dispute. In short, the civil law and common law disputes.
Civil Code guarantees the consideration of legal property, not according to strict civil law theory
system , the matter of security on the property,
mulberry outlet, the security man on the claim,
######## oakley sunglasses, and is uniform on the secured portion of the debt within the rather common-law features: emphasis on practical, convenient, rather than heavy theory. The introduction of China's Security Law to continue to take this pattern, and the United States, Taiwan's civil law practice in the original matter of security and human security on the basis of strict division, but also completely emulate the United States through a single law - When in the formulation of the Civil Code, how will it? Is retained as a single security law law? Or pattern according to Civil Code as a debt guarantee a unified form? Or decomposed by the traditional civil law model for the matter of security and human security it? or like Taiwan, as the codification of civil law has retained the traditional model, and supplemented by complete model of a single law of common law? This is a need to seriously address the problem.
TAG Tag: China Civil Code formulation of macro-thinking
China's macro-thinking development of the Civil Code
China Civil Code established this point of view of macroeconomic thinking
was reported in the relevant academic and other journals and proceedings published, are made by consolidate.
Ping Jiang Ping Jiang China University of Political Science
Civil Code, the formulation is an ambitious and difficult project, should the overall, global design. Properly handle the relationship between the Basic Law and a single law, to avoid the formation of the Should be taken to the civil law of the legislative system to absorb some of the common law of the advanced
system ,
tods shoes outlet, rules. Civil Code will inevitably mixed with some of the rules of public law, public
power of the regulation should be science. Outside the Civil Code, and then set a Commercial General, has issued a public
Justice , Negotiable Instruments Law, Maritime Law, Insurance Law, etc. still remain in the form of a single law. Should include the main rules and behavior rules to determine the status of the subject, qualifications, competence, authority
legal specification should reflect the legal nature of the subject to obtain
right or the exercise of rights legal norms should be reflected in a considerable degree of autonomy. The development of the Civil Code, you should consider how clever and artistic use of peremptory norms and arbitrary norms.
Civil Code, Legislative Research / Basic / single law / civil / commercial law
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