1, formulation method
2. Law
3. International treaties
Step 4 get used to it
5. Law
The sources of China's civil law include formal sources and informal sources.
Official source:
1, the civil code in the constitution. Constitution is the fundamental law of the country and has the highest legal effect. The provisions on ownership and the basic rights and obligations of civil subjects in the Constitution are not only the basis of civil legislation, but also the legal norms for adjusting civil relations.
2. General principles of civil law and separate civil law. The general principles of civil law stipulate the principles and systems of civil life, which is the core of the origin of civil law. In addition, there are separate civil laws, including contract law, guarantee law, marriage law, inheritance law, company law and copyright law. Other comprehensive separate laws, such as cultural relics law, grassland law, mineral resources law, forest law and water law, also contain important civil law norms.
3. the State Council has formulated and promulgated civil laws and regulations. These civil regulations must not contravene the Constitution and laws. There are two kinds: one is based on the administrative functions of the government, which is formulated for the legislative department, such as the Regulations on the Registration of Enterprise Legal Persons, the Regulations on the Implementation of Copyright Law, and the Detailed Rules for the Implementation of Patent Law. The other is a single administrative law with civil legal norms, such as land management law, urban real estate management law, urban private housing management regulations and so on.
4. Local regulations, separate regulations and autonomous regulations. Some belong to civil norms. However, local regulations, autonomous regulations and separate regulations can only be effective within the administrative area under the jurisdiction of the makers.
5. regulations. According to the provisions of the Legislative Law, there are departmental rules and local government rules. Some provisions are civil norms.
6. Civil judicial interpretation of the Supreme Court. The civil judicial interpretation of the Supreme Court is an interpretation of the application of the law, which is binding on court trials and is cited as a legal source in judicial practice.
7. Civil norms in international treaties. International conventions or bilateral agreements signed by our government and approved by the National People's Congress have the same legal effect as domestic laws, such as the United Nations Convention on Contracts for the International Sale of Goods and the Paris Convention for the Protection of Industrial Property.
Informal sources:
1, habit. Habit is a regular practice formed in people's daily life and transactions. In the civil codes of many countries, there is a provision that "if there is no provision in this law, it shall be in accordance with custom". China's civil law has no general provisions on the effect of custom, but it cannot deny its legal source status. Whether the written law recognizes custom as the source of law or not, the fact that custom is the source of law exists. Because no written law can exhaust all possibilities, when there are omissions in the written law, one of the judges' choices is to find habits, and habits become the de facto source of law.
2. Law. Because legislation itself is a very complicated activity, it can't be done overnight. The Supreme Court can constantly promote the improvement of legislation through the form of precedent, and use precedent to guide the trial work throughout the country. The written law is too abstract, which easily leads to the disunity of judicial application. The Supreme Court approved and promulgated some typical cases, and judges creatively applied the law by analogy with its rules. At present, judicial practice also attaches great importance to the use of precedents. In fact, the role of higher and lower courts is not to learn from, but to follow.