From birth to death, from signing contracts to doing business, to getting married and having children and inheriting and adopting, everything of ordinary people can't be separated from civil law. Therefore, civil law is also called the encyclopedia of social life, which directly affects everyone's life.
The latest edition of the General Principles of Civil Law has made a total of 126 amendments, including 55 substantive amendments, such as raising the controversial lower age limit for restricting civil capacity from six to eight years old; Adjust the distribution of burden of proof of "good people" to alleviate the worries of emergency rescuers; Adopt academic suggestions, restore invalid clauses that violate mandatory provisions, and add clauses to protect the names, portraits, reputations and honors of heroic martyrs according to the suggestions of some delegates.
What influence does the general principles of the new civil law have on the proposition of 20 17 civil law?
Watch 1
The basic principles embody the new development concept.
Basic principles are the basic principles that civil subjects should follow in civil activities, and also the basic principles that judicial organs should follow in civil judicial activities. The first chapter of the draft focuses on establishing the basic principles of civil law and stipulating the legislative purpose and applicable rules of law. On the basis of the general principles of civil law, the draft has established the basic principles of equality, voluntariness, fairness, honesty and credibility, law-abiding and green principles in combination with more than 30 years of civil legal practice.
The green principle is written into the basic principle.
Highlighting the protection of ecological environment is one of the highlights of this draft. In recent years, there have been many cases in which the crew destroyed the ecological environment. The film crew of "The Promise" built a temporary building for filming, which destroyed some alpine meadows and shrubs around the Bigu Tianchi Lake and affected the surrounding natural ecological environment. Finally, the crew was fined 90,000 yuan, and the deputy magistrate of Shangri-La County was dismissed because of his leadership responsibility. In the future, similar incidents will not only stop the infringement and compensate for the losses, but also restore the original state.
Article 8 of the draft stipulates: "Civil subjects engaged in civil activities should be conducive to saving resources and protecting the ecological environment." This regulation not only inherits the excellent traditional Chinese cultural concept of harmony between man and nature, but also embodies the new development concept since the 18th National Congress of the Communist Party of China, which is in line with the national conditions that China is a populous country and needs to deal with the ecological contradiction between good people and resources for a long time.
"Custom" becomes the applicable legal rule.
In some areas, the adopted son-in-law has the obligation to support the elderly; When auctioning, the auctioneer will get used to the "three-tone auction method", and after "1, 2, 3", he will drop the hammer and make a deal; In international trade, FOB terms have become a trade rule ... these universally followed codes of conduct can be used as the basis for courts to decide cases.
This draft stipulates the applicable rules of civil law: first, civil disputes should be handled according to law; If there are no provisions in the law, customs can be applied, and public order and good customs, that is, public order and good customs, cannot be violated. Second, if other laws have special provisions on civil relations, those provisions shall prevail. This means that "custom" can also be used as a legal source in the future, allowing the court to apply local customs to try cases in the absence of laws and regulations.
Why should "custom" be written into the general principles of civil law? According to the person in charge of the Legal Affairs Commission of the National People's Congress Standing Committee (NPCSC), "On the one hand, considering China's vast territory and complicated situation, laws always lag behind reality, and it is impossible to cover everything, and legislators' own foresight ability is limited. On the other hand, at this stage, habits still have room for application, some good folk customs. "The legislators themselves have limited foresight. On the other hand, judging from the development of law itself, the earliest law evolved from habit and originated from habit. At the same time, he stressed that a prerequisite for the application of custom is that there is no law. In this case, habits can be applied. In other words, custom is a supplement to law.
Aspect 2
The subject of natural person is more perfect.
Civil subject is the participant of civil relations, the holder of civil rights, the executor of civil obligations and the undertaker of civil responsibilities, and it is also the basis of building a civil legal system. It is very important to clarify the civil subject and its rules. Natural person is the most important and oldest civil subject. This time, on the basis of the general principles of civil law, the draft has made a number of improvements to the natural person system.
Make it clear that the fetus has the right of inheritance and gift.
Father died before he was born. Can this fetus inherit his father's property? If the mother is pregnant and the fetus suffers personal injury, can she file an infringement lawsuit to protect her rights after the child is born? These were not found in the previous civil legislation, which also led to the lack of corresponding basis for judges to judge cases in judicial practice, resulting in the consequences that fetal rights were not fully protected by law.
In particular, the draft adds provisions to protect the interests of the fetus. Article 17 of the draft stipulates: "If it involves the protection of the interests of the fetus, such as inheritance and acceptance of gifts, it is deemed that the fetus has the capacity for civil rights. However, if the fetus dies at birth, its capacity for civil rights does not exist from the beginning. "
Reduce the age limit for civil capacity.
A first-grade primary school student gave his pen to his deskmate. Will this kind of behavior be recognized by law? When parents divorce, can a judge decide who should have custody according to the choice of an 8-year-old child? The solution of these problems depends on whether the child has civil capacity.
In order to better respect minors' sense of independence, the draft lowers the age standard for persons with limited capacity for civil conduct according to the characteristics of minors' physical and mental development. Article 20 of the draft stipulates: "Minors over the age of six are persons with limited capacity for civil conduct. They can perform civil legal acts on their behalf or with the consent and ratification of their legal representatives, but they can independently perform purely for-profit civil legal acts or civil legal acts appropriate to their age and intelligence."
Why at the age of six? Li Shishi, director of the Legal Affairs Commission of the National People's Congress Standing Committee (NPCSC), explained that due to the development of economy and society and the improvement of living education level, minors' physical and mental maturity and cognitive ability have been improved, and appropriately lowering their age is beneficial for them to engage in civil activities suited to their age and intelligence, better respect their sense of independence and protect their legitimate rights and interests. In addition, this adjustment also echoes the provisions of China's Compulsory Education Law that children over the age of six must receive compulsory education, which is easy to master and implement in practice.
Aspect 3
Solve the air-to-air problem of guardianship
Four left-behind children in Bijie, Guizhou Province committed collective suicide at home because their fathers had been working outside for a long time and their mothers had been trafficked. The biological father sexually assaulted his daughter; Disabled elderly people starve to death because of neglect ... In recent years, such tragedies have occurred continuously and become the pain of the whole society.
Guardianship system, as a legal system to protect the legitimate rights and interests of people with limited capacity for civil conduct and people without capacity for civil conduct, is very important to make up for the lack of capacity for civil conduct of civil subjects. However, for the guardianship system, although there are many involved in our current laws, it seems to be relatively perfect in terms of system. When one kind of guardianship is missing, it seems that it can be made up by other guardianship immediately. However, in practice, many guardianship systems cannot be implemented, which is also the biggest problem in China's guardianship system.
In view of the outstanding problems existing in the current guardianship system, the draft is based on family guardianship, supplemented by social guardianship and based on national guardianship. The guardianship system has been improved, the obligations of parents and children for raising and supporting have been clarified, the scope of ward has been expanded, the guardianship function of the government has been strengthened, and the determination of guardians, the performance of guardianship duties and the revocation of guardianship have been clearly stipulated.
Expand the scope of the ward
With the advent of an aging society, more and more elderly people, especially disabled elderly people, have become a problem. The current General Principles of Civil Law only stipulates the guardianship of minors and mental patients, while the guardianship of adults has always been a blank point. This draft fills this gap, expands the scope of ward, and stipulates that adults with no or limited capacity for civil conduct are also ward. This means that people with mental retardation and adults who have lost or partially lost their cognitive ability due to diseases and other reasons are also included in the scope of guardianship. These adjustments will help to protect the personal and property rights of people with mental retardation, and also help to cope with the problem of population aging and better safeguard the rights and interests of the elderly.
It is worth mentioning that the problem of providing for the elderly in families who have lost their independence has become a problem that many people are entangled in. Some parents who have lost their families want to choose someone they trust as their future guardian, but there is no legal basis. This time, Article 34 of the draft stipulates that "adults with full capacity for civil conduct may determine their guardians in writing through prior consultation with their close relatives, other individuals willing to act as guardians or relevant organizations. When an adult loses or partially loses his capacity for civil conduct, the guardian determined through consultation shall bear the guardianship responsibility. "
Some experts explained that this provision clarifies the unique guardian decision mode of adult guardianship system-intentional guardianship, that is, adults can pre-select their trusted relatives and friends or social security institutions as their guardians when their intelligence is normal, and choose their own guardians when they are old and mentally degraded.
In addition, in order to emphasize family responsibilities and promote Chinese traditional virtues, the draft also adds a provision: "Children have the obligation to support, care for and protect their parents who have no or limited capacity for civil conduct."
The civil affairs department puts the responsibility of guardianship "in front"
2065438+February 2005, the first case in which the civil affairs department applied to revoke the qualification of parents as guardians of children was heard in public in the People's Court of tongshan district, Xuzhou City. Finally, the court revoked the parents' custody of their daughter, and appointed Xuzhou tongshan district Civil Affairs Bureau as the child's guardian. This case has become a typical case after the official implementation of the Opinions on Handling Several Issues Concerning Guardians' Infringement on Minors' Rights and Interests.
With the strengthening of the country's economic strength and the improvement of its governance capacity, many people think that the national guardianship function should be strengthened, and the civil affairs department of the government should fill the position in time when the guardian is absent. This time, Article 33 of the draft stipulates: "If a person is not qualified for guardianship according to law, the civil affairs department or the residents' committee or villagers' committee where the ward is qualified shall serve as the guardian."
Regarding this provision, some experts said that the civil affairs department will be urged to truly assume the responsibility of guardian and assume the responsibility of guardianship and supervision. Moreover, considering from the future, the government-led nursing homes should play a greater role, so it is in line with the reality of our country to let the civil affairs departments undertake the corresponding guardianship duties.
Improve the system of revocation of guardianship
In real life, guardians do not perform their guardianship duties and commit acts that infringe on the interests of the ward from time to time. However, the current law only stipulates in principle: if a guardian fails to perform his guardianship duties or infringes on the legitimate rights and interests of the ward, he shall bear the responsibility; If property losses are caused to the ward, compensation shall be made for the losses. The court may, upon the application of the relevant personnel or units, revoke their guardianship.
Article 37 of the draft refines the specific circumstances of revoking the qualification of guardian, including: committing acts that seriously damage the physical and mental health of the ward; Failing to perform guardianship duties, or failing to perform guardianship duties, and refusing to entrust part or all of guardianship duties to others, resulting in the ward being in a dangerous state; Other acts that seriously infringe upon the lawful rights and interests of the ward.
Then, the people's court may, upon the application of the individual or organization concerned, revoke the guardianship qualification, arrange necessary temporary guardianship measures, and appoint a new guardian according to the principle that is most beneficial to the ward.
Strictly restore the conditions for revocation of detention.
The boy's foster mother, Li, was sentenced to six months in prison in the "Nanjing child abuse case", which caused widespread concern. At the same time, the court held that Li was no longer suitable for adoption and custody of children in the future. However, according to media reports, after Li was released from prison, the boy was still willing to live with her and said, "I don't hate foster mothers, it's all for my own good." The case handler once said, "The child has repeatedly expressed his wish to see his mother to the procuratorate."
Based on this, the draft gives the original guardian the right to repent. Article 39 of the draft stipulates that "after the guardian's parents or children are disqualified from guardianship by the people's court, they do show repentance except for intentional crimes against the ward." Upon their application, the people's court may resume their guardianship as appropriate, and the guardianship relationship between the guardian appointed by the people's court and the ward shall be terminated at the same time. "
Aspect 4
Innovating the legal person system according to the national conditions
The legal person system is a basic system in civil law. With the development of China's economy and society, new organizational forms appear constantly, and the legal person form has undergone great changes. In reality, a large number of companies, partnerships and sole proprietorships exist and conduct a large number of market transactions. From the perspective of social and economic life, it is of great significance to improve the legal person system to promote the development of socialist market economy. It can be said that the legal person system is the legislative focus of the general principles of civil law, and it is also the part with the most social opinions and the biggest changes in content since the first trial.
Adapting to the needs and innovating the classification of legal persons
The current General Principles of Civil Law divides legal persons into four categories, namely, enterprise legal persons, organ legal persons, public institutions legal persons and social organizations legal persons. However, with the development of China's economy and society, the classification of legal persons in the general principles of civil law has been difficult to adapt to the new situation, and it is necessary to adjust and improve it.
In order to reflect the fundamental differences in the nature of different legal persons, strengthen the guidance, standardization and protection of various social organizations, and promote their healthy development, which conforms to the basic understanding of Chinese people, the draft follows the basic idea of the general principles of civil law on the classification of legal persons, adapts to the requirements of the reform and development of social organizations, and divides legal persons into three categories according to their different purposes and functions.
Give legal person status to village committees and neighborhood committees.
In view of the special establishment and termination of some legal person organizations, it is not appropriate to distinguish between for-profit legal persons and non-profit legal persons. According to the actual needs, the draft has specially set up a section on special legal persons, which stipulates that legal persons of organs, rural collective economic organizations, cooperative economic organizations and grassroots mass autonomous organizations are special legal persons.
Rural collective economic organizations have distinctive China characteristics and are a special economic system in China. From the first trial to the third trial, there have been opinions demanding that it be given the status of an independent legal person. Judging from the survey results, opinions are also very consistent. The draft finally gives it the status of legal person, which conforms to the spirit of the reform of the CPC Central Committee, is conducive to improving the realization form and operation mechanism of rural collective economic organizations and enhancing the vitality of rural collective economic development.
For a long time, grassroots mass autonomous organizations such as neighborhood committees and village committees have their own legal status in the Constitution, the Organic Law of Urban Residents' Committees and the Organic Law of Villagers' Committees, but they have no clear civil legal status. The survey found that in reality, due to the lack of civil subject status, many village committees, as collective economic organizations, were unable to engage in some civil acts, such as signing contracts and opening accounts in banks, which hindered the performance of public affairs. In view of this, the draft makes it clear that neighborhood committees and village committees have the legal personality of grassroots mass autonomous organizations and can engage in civil activities required to perform their functions.
Aspect 5
Expand the scope of civil rights protection
Protecting civil rights is the core of civil law and an important task of civil legislation. The draft inherits the general principles of civil law, and the special chapter stipulates the types and contents of civil rights. This chapter aims to implement the requirements of the CPC Central Committee on realizing the legalization of civil rights protection and improving the property rights protection system, highlighting respect for civil rights and strengthening civil rights protection. As a requirement of oath, it also provides a basis for the specific provisions of civil rights in various ministries of civil law and special civil and commercial laws.
In terms of personal rights, the draft stipulates that the personal freedom and personal dignity of natural persons are protected by law; Natural persons enjoy the right to life, health, body, name, portrait, reputation, honor, privacy and marital autonomy. In terms of property rights, the draft stipulates that the property rights of civil subjects are equally protected by law. Civil subjects enjoy property rights, creditor's rights, inheritance rights, stock rights and other investment rights according to law.
Add "Personal Information Protection" clause
On August 9th, 20 16, Xu Yuyu, a student from Luo Zhuang, Linyi City, Shandong Province, was defrauded by telecom. Xu Yuyu, who was cheated of 9900 yuan, went to the police station with his father. On the way home, he felt unwell and went to the hospital for emergency treatment. On August 2 1 day, he died after being rescued. Once the incident was reported, the social response was strong.
In view of the current situation of telecom fraud and online fraud, some insiders pointed out that although the new Consumer Protection Law and the Decision on Strengthening Network Information Protection have made some provisions on personal information protection, they have not played a corresponding role. "Personal information protection" should also be regarded as a civil right to solve the problems of telecom fraud and online fraud from the perspective of civil and commercial law and tort law.
Considering that in the information society, the protection of personal information of natural persons is particularly important, and the right to personal information is an important right enjoyed by citizens in modern society, the draft has made specific provisions. Article 1 14 of the draft stipulates: "The personal information of natural persons shall be protected by law. Any organization or individual shall ensure the security of personal information obtained according to law, and shall not illegally collect, use, process or transmit personal information, or illegally trade, provide or disclose personal information. "
Some people think that the reason why personal information protection is included in civil rights is to avoid the abuse of personal information. Once abused, victims can defend their rights from the perspective of tort law.
Network virtual property is included in the scope of civil law protection.
Since the 18th National Congress of the Communist Party of China, all previous plenary sessions of the Central Committee have emphasized the need to improve the protection of property rights and interests of civil subjects. The draft clearly stipulates that civil subjects enjoy real rights according to law, including ownership, usufructuary right and security right; The real rights of civil subjects are equally protected by law, and no organization or individual may infringe upon them. At the same time, article 120 of the draft stipulates: "In order to meet the needs of public interests, those who expropriate or requisition real estate or chattel according to the authority and procedures prescribed by law shall be given fair and reasonable compensation."
In order to adapt to the development of the Internet and big data and reflect the times, the draft also specifically stipulates the protection of network virtual property and data. Article 13 1 of the draft stipulates: "If the law has provisions on the protection of data and network virtual property, those provisions shall prevail."
At the same time, the draft strengthens the protection of intellectual property rights, and stipulates that civil subjects shall enjoy intellectual property rights in accordance with the law for intellectual achievements such as works, patents, trademarks, geographical indications, trade secrets, layout design of integrated circuits, and new plant varieties. Compared with the general principles of civil law, trade secrets, layout design of integrated circuits and new plant varieties are all new contents.
Aspect 6
Encourage brave behavior.
In recent years, there have been many typical cases of doing good deeds, which have caused damage to the recipients and compensated the good deeds. Therefore, in the past deliberations of the Standing Committee, some members of the Standing Committee have always proposed to attach importance to this issue and asked the law to clearly stipulate it. In the future, the situation of "letting heroes shed blood and tears" and "being held accountable for failure to save people" may change.
In order to encourage the courageous behavior, article 187 of the draft clearly stipulates that "the salvor shall not bear civil liability for the damage caused by voluntary emergency rescue." However, if the salvor causes undue great damage to the salved person due to gross negligence, he shall bear corresponding civil liability. "
At the same time, article 188 of the draft also stipulates: "If the infringer causes damage to himself by protecting the civil rights and interests of others, the infringer shall bear civil liability and the beneficiary may give appropriate compensation. If no infringer or infringer escapes or is unable to bear civil liability, and the victim requests compensation, the beneficiary shall give appropriate compensation. "
Aspect 7
Limitation of action meets the needs of practice.
In order to prevent legal rights from sleeping, the law stipulates the limitation of action. Limitation of action is a legal system in which the obligee does not exercise his rights within the statutory period and his rights are not protected. In view of the major changes in current social and economic activities, the draft has made major adjustments to the statute of limitations.
It is proposed to increase the general statute of limitations from 2 years to 3 years.
It is common for acquaintances to borrow money. However, after the money is lent out, sometimes many people are embarrassed to ask for money back and are unwilling to go to court. They think they can discuss it first, and it will take years if they are not careful. However, if someone owes you money, but doesn't pay it back according to the current General Principles of Civil Law, then he will be taken to court within two years, otherwise it will be beyond the limitation of action and won't get due protection.
With the profound changes in social life, the continuous innovation of transaction methods and types, the relationship between rights and obligations is more complicated, and the time limit for requiring the obligee to exercise his rights within the two-year limitation period is too short, which is not conducive to protecting the legitimate rights and interests of the parties, so it is necessary to extend it appropriately. At the same time, considering that the development of modern market economy requires accelerating economic circulation, and the modernization of communication means makes the exercise of rights more convenient, which leads to the trend of shortening the general limitation period, the draft revised the limitation period of civil litigation after absorbing the experience of judicial practice, and extended the general limitation period from the current two years to three years.
Minors who are sexually assaulted as adults can still "settle accounts".
Research shows that the number of left-behind children in rural areas is constantly expanding, and influenced by traditional social concepts, once these minors are sexually assaulted, the families of the victims will feel very ashamed, and many people are unwilling and afraid to seek legal protection openly. Some victims began to seek legal relief by themselves as adults, but they often exceeded the limitation of action. Even if the court accepts the case, it is impossible to get a successful judgment according to the current statute of limitations, which often leads to the perpetrators of such cases escaping the punishment of the law and causing lifelong regret for the victims.
In order to better protect the interests of minors who have been sexually abused and provide them with the opportunity to seek legal relief when they are adults, the draft has made important adjustments to the rules for starting civil proceedings in cases of sexual abuse of minors. Article 194 of the draft stipulates that "the limitation period for minors to claim damages for sexual assault shall be counted from the date when the victim reaches the age of 18. "This means that if you were sexually assaulted in childhood, even if you didn't claim your rights and pursue the infringer's responsibility at that time, you can still" settle accounts after autumn "and ask the infringer to give civil compensation after you reach 18 years old.