The General Principles of Civil Law of People's Republic of China (PRC) and the General Principles of Civil Law of People's Republic of China (PRC) are the legal provisions on some same-sex issues in civil activities in China, and they are the general laws in the civil law system. 1986 April 12 was revised and adopted at the fourth session of the Sixth National People's Congress, and will be implemented on June 1987 1 day. * * * Chapter IX, article 156.
Brief Introduction of General Principles of Civil Law in People's Republic of China (PRC)
Atlas of General Principles of Civil Law in People's Republic of China (PRC)
April 1986 "General Principles of Civil Law of People's Republic of China (PRC)" was promulgated. This is the first civil basic law officially promulgated in the history of New China, and it is an important milestone in China's civil legislation, and is known as China's "Declaration of Rights". It inherited the ideal of China's political system reform for rejuvenating China since the late Qing Dynasty, opened up a new situation of building socialist democratic politics and market economy system in New China since the reform and opening up, laid the foundation of Socialism with Chinese characteristics's market economy legal system, and provided the basic premise and foundation for the gradual improvement of China's civil legal system.
In the past two decades, great changes have taken place in all aspects of society, and many new defects have been exposed in the general principles of civil law, which are becoming more and more prominent. It can be said that the General Principles of Civil Law has been difficult to meet the needs of the development of market economy and has completed its special historical mission. From the defects of the General Principles of Civil Law, we can clearly see that it is very urgent to amend the General Principles of Civil Law, but we should also be soberly aware of this.
The legislature has a clear plan for the drafting process of the general principles of civil law, and strives to submit them to the National People's Congress for deliberation in the spring of 1986. Therefore, the members of the drafting group should write the articles as soon as possible on the basis of the four drafts of the Civil Law and the eight opinions put forward by the Law Committee, and make amendments after collective discussion and extensive consultation by the drafting group. In the process of drafting, democracy and centralization crossed and repeated, brainstorming, and the General Principles of Civil Law finally embodied and concentrated many opinions.
In order to formulate an excellent civil code, experts from the whole society, especially the legislative, judicial and legal theorists, should work together with Qi Xin to strengthen the research on the representative national law, German and Japanese civil codes and civil law theories of western developed countries, especially the civil law system, and combine with the actual situation in China; Especially in the special situation of the socialist market economy, we should revise the defects of the General Principles of Civil Law, delete the contents that are not in line with the market economy, supplement and improve the foreign scientific and advanced civil legal system in light of the specific situation of China, and formulate a perfect, scientific and advanced excellent civil code with China characteristics suitable for socialist modernization.
The promulgation of General Principles of Civil Law provides a basic legal basis for civil justice and judicial interpretation. After the promulgation of the General Principles of Civil Law, the economic system reform has further developed. 1April 2, 988, the Supreme People's Court issued the Opinions on Implementing Several Issues (for Trial Implementation), with 200 articles. Judges and scholars are referred to as "200 articles" for short.
Related background/General Principles of Civil Law of People's Republic of China (PRC)
Atlas of General Principles of Civil Law in People's Republic of China (PRC)
The name of the symposium held by the Law Committee in June 1985 was the symposium on general principles of civil law. In the process of discussion and drafting, there are suggestions to modify the name, and three names are put forward for different reasons: general principles of civil law, general outline of civil law and outline of civil law. Their similarity lies in that the content should go beyond the scope of the general principles of civil law and solve the legal problems that need to be solved in practice. At that time, as a part of civil law, there were already marriage law, inheritance law, economic contract law, trademark law, patent law and so on. What is lacking is mainly the general principles of civil law, property rights and tort liability legislation. It is difficult to mention the legislative agenda when drafting the property law, so I decided to draft the general principles of civil law with the general principles as the main content and the specific content as the consideration. As can be seen from the contents of the general principles of civil law, the provisions of the general principles of civil law are more prominent, and the issues of the specific provisions of civil law are all involved, but the details are quite different. The main problems of real right and creditor's right are briefly stipulated. A separate section on individual rights emphasizes the protection of individual rights; The chapter on civil liability emphasizes tort liability. In addition, there was no law on guardianship at that time, so the provisions were more detailed; Made suggestive provisions on intellectual property rights. "General Principles of Civil Law" also stipulates that the legal loan relationship is protected by law, which is so prominent because of the outstanding problems in practice. At that time, a judge suggested that the issue of borrowing should be briefly stipulated. Even if a provision is made, it will be convenient for the Supreme People's Court to make a judicial interpretation according to the general principles of the civil law, so that lending cases can be legally followed. This is how Article 90 of the General Principles of Civil Law came into being.
First, it is stipulated that individual industrial and commercial households and rural contracted households should focus on consolidating the reform results.
There are still different opinions on whether individual industrial and commercial households and rural contracted households are civil subjects, and there are also different opinions when drafting the General Principles of Civil Law. From the principle of civil law, it is difficult to say that individual industrial and commercial households and rural contracted households are civil subjects, and the legislature mainly considers the issue from the perspective of policy. At that time, rural contracted management had been implemented throughout the country, and individual industry and commerce had developed greatly. Such a major policy issue should be determined in the form of a basic civil law. The General Principles of the Civil Law stipulates the property and responsibility relationship between the operators of individual industrial and commercial households and rural contracted households and their family members, which provides a legal basis for solving related disputes. The result of the discussion is that individual industrial and commercial households and rural contracted households are defined as citizens (natural persons) in the fourth quarter of Chapter II.
The second is to stipulate that individual partnerships should focus on the policies at that time.
In the early days of reform and opening up, various forms of economic organizations appeared, which was dazzling. From the perspective of civil subject, it can be classified into three categories: sole proprietorship, partnership and legal person, but how to stipulate it in the General Principles of Civil Law is not simple. One of the problems encountered in legislation is the legal status of partnership enterprises. There are two opinions on this, one is that partnership should be defined as a civil subject, and the other is that partnership is a contractual relationship. The dominant intention of the legislature is to stipulate that individual partnership should focus on reflecting the policy of reform and opening up, and whether it belongs to the civil subject, and scholars will continue to study it in the future. Finally, it is determined that individual partnership is stipulated by citizens (natural persons) in Section 5 of Chapter 2.
The second question is whether to stipulate that the property of the partnership belongs to the partnership, which is a standard questions in civil law, but the General Principles of Civil Law does not directly stipulate this, but stipulates that the property invested by the partners shall be managed and used by the partners in a unified way; The property accumulated by a partnership shall be owned by the partners (Article 32). This provision is mainly to prevent people from misunderstanding * * * as public ownership and affect people's enthusiasm for investment in partnership enterprises. It is stipulated that the property invested by the partners shall be managed and used by the partners in a unified way. Is there any fundamental difference between the actual effect and * * *?
The third question, how to distinguish between individual partnerships and large employees? At that time, individual industrial and commercial households had one or two hundred employees, and they were called big employers at that time. Article 30 of the General Principles of the Civil Law stipulates that partnership means that two or more citizens provide funds, materials and technology respectively according to the agreement and work together. Require partners to cooperate and exclude big employers. At that time, the policy for large employees was not clear, so there was no regulation.
Third, it is stipulated that the joint venture of legal persons should focus on drawing a clear line between civil law and economic law.
Chapter III of the General Principles of the Civil Law is a legal person, and Section IV (Articles 565438 +0-53) contains three provisions on joint venture. In the process of reform, there are three basic forms of joint venture, one is close joint venture, which is actually a joint venture with legal person qualification, the other is semi-close joint venture, which is actually a joint venture with partnership, and the third is loose joint venture, which is actually a long-term contractual relationship. Scholars call it legal person joint venture, partnership joint venture and contract joint venture respectively. From the perspective of traditional civil law, these three provisions are legal person, partnership and contract respectively, and should not be stipulated together according to the agreement. My understanding of this provision in the General Principles of Civil Law is as follows: First, the provisions on joint venture reflect the reality of reform, so that the joint venture relationship has clear legal provisions, and there are laws to follow when disputes arise. Second, the individual partnership and legal person partnership are stipulated separately, which excludes the partnership between individuals and legal persons. This is because the partnership between individuals and collective enterprises or state-owned enterprises is related to major decisions and needs to be cautious, so it is not stipulated for the time being. Thirdly, when discussing the draft general principles of civil law, some scholars who advocate "big economic law" believe that joint venture is an economic law issue, and the general principles of civil law should not stipulate joint venture. The legislature insists on stipulating joint venture in the General Principles of Civil Law, which actually affirms that joint venture is a civil legal relationship, not an economic legal relationship, thus further drawing a clear legal boundary between civil law and economic law.
Guiding ideology/General Principles of Civil Law in People's Republic of China (PRC) and China
1, integrating theory with practice. This is China's consistent legislative guiding ideology. At the symposium on the draft general principles of civil law held in February 1985, both Chairman Peng Zhen and Vice Chairman Peng Chong talked about this issue, pointing out that it should be guided by scientific theory and based on practice; We should proceed from reality and solve practical problems; We should embody the socialist system with China characteristics.
We should not only sum up the experience of China, but also learn from foreign legislation.
3. Economic relations are regulated by civil law, economic law and administrative law respectively, and cannot be regulated by a certain legal department.
4. The content should be concise, and the written expression should be popular and accurate.
Legislation should be complete, but it should be prioritized. Formulating the general principles of civil law does not mean that a civil code is not needed, and a civil code will be formulated when conditions are ripe.
Interpreting the Main Contents of General Principles of Civil Law in People's Republic of China (PRC) and Civil Law in People's Republic of China (PRC)
Atlas of General Principles of Civil Law in People's Republic of China (PRC)
Determination of the object of civil law adjustment
The adjustment object of civil law is the division of legal departments in socialist countries. The main problem involved is how to determine the boundary between civil law and economic law. After a long-term debate on this issue, scholars in the former Soviet Union finally stipulated the object of adjustment of civil law in the Outline of Legislation and Civil Affairs of the Soviet Union and its Allies in 196 1. Shortly after China's reform and opening up, the discussion on the object of civil law adjustment began, and then there was a debate between the object of civil law adjustment and the object of economic law adjustment. There are different views and schemes. The main differences are manifested in the two opposing propositions of "Great Economic Law" and "Great Civil Law". The greatest theoretical influence of the Great Economic Law is the theory of vertical and horizontal unification, which holds that the economic management relationship (vertical economic relationship) and the economic relationship between enterprises (horizontal economic relationship) should be uniformly adjusted by the economic law. The theory of commodity relations is the most influential theory advocating civil law, which holds that the relationship between commodity ownership and commodity exchange should be uniformly adjusted by civil law. When the General Principles of Civil Law was drafted, no one objected to affirming that commodity relations should be adjusted by civil law. Whether the adjustment object of civil law is limited to commodity relations is controversial. The dominant opinion is that, basically referring to the civil codes of the Soviet Union and Russia, property relations are marked by equality, and personal relations are limited to personal relations adjusted by civil law methods, thus forming the property relations and personal relations between citizens and legal persons and citizens and legal persons with equal subjects as stipulated in Article 2 of the General Principles of Civil Law. The expression and connotation of this provision is different from that of the Soviet civil legislation outline. 1964 The outline and preface of the Civil Code of Soviet Russia all state: "The Soviet Civil Law regulates the property relations arising from the use of commodity currency in capitalist construction, as well as the personal non-property relations related to these property relations." Article 2 of the Civil Code of Soviet Russia stipulates the relationship of civil code adjustment in four paragraphs, among which the third and fourth paragraphs stipulate that the property relationship, family relationship, labor relationship and land relationship in administration, taxation and budget are not subject to civil law adjustment. Different from the Soviet Civil Code, the general principles of civil law include marriage and family relations, guardianship relations, land relations and intellectual property relations, but for those with separate laws, they are mainly suggestive or principled provisions.
In principle, legal persons independently enjoy civil rights and assume civil obligations.
The provisions of the General Principles of Civil Law on legal persons are different from those of Germany, the Soviet Union and other countries. First, the General Principles of the Civil Law clearly stipulates the conditions that a legal person should have, and the prescribed conditions are relatively strict. It is a policy issue to stipulate that a legal person should be "established according to law", which is directly related to whether a private economic organization can obtain the qualification of a legal person, so that it can be flexibly grasped in practice according to the situation. Second, whether an unlimited company has the legal person status has different attitudes towards this foreign law, and there are also different opinions during the drafting process. Article 36 of the General Principles of the Civil Law stipulates that a legal person is an organization with civil rights and capacity for civil conduct, which independently enjoys civil rights and undertakes civil obligations according to law. The basic spirit of this provision is that legal persons should bear civil liability independently in principle. In the part of enterprise legal person, it is clearly stipulated that one of the conditions of enterprise legal person is "being able to bear civil liability independently" (Article 4 1), and it is also stipulated that "unless otherwise stipulated by law." (Article 48), this provision leaves room for flexibility.
The General Principles of Civil Law uses two concepts: civil juristic act and civil act.
Do you follow the traditional concept of legal act in the General Principles of Civil Law? There are three opinions on this issue: one is to use legal acts, the other is to use civil legal acts, and the third is to use civil acts. The reason why we advocate the use of civil juristic act is that the concept of juristic act has been used in jurisprudence, which expands the connotation of juristic act. The purpose of using civil juristic act is to distinguish it from juristic act in jurisprudence. In addition, stipulating that a civil juristic act is a juristic act is to set a standard of conduct for people, which is reflected in the conditions that a civil juristic act should have as stipulated in Article 55 of the General Principles of the Civil Law. Advocating civil behavior is to replace the concept of legal behavior with civil behavior, which has the same connotation. There are two reasons for using civil acts: one is to clarify the civil nature of acts, which is different from administrative acts. The second is to avoid the traditional civil law theory attributing legal acts to legal acts, while attributing invalid legal acts to the defects of legal acts. Later, the general principles of civil law adopted the concepts of civil juristic act and civil act.
Put forward the concept of "property rights related to property ownership"
Whether the General Principles of Civil Law uses the concept of real right, including usufructuary right, was discussed when it was drafted. There is no disagreement of principle in theory. We considered whether to use the concept of real right in the general principles of civil law and reached a consensus. In view of people's unfamiliarity with the concept of real right at that time, they were worried that the concept of real right would affect the adoption of the general principles of civil law. Some scholars suggested that the title of the first section of Chapter V of the general principles of civil law should be: "Property ownership and real rights related to property ownership". This is a technical problem of legislation, a concept under specific historical conditions, and it can also be said to be the national conditions of China.
Establishment of management right of state-owned enterprises
The General Principles of the Civil Law stipulates that enterprises owned by the whole people have the right to operate the property entrusted by the state and are protected by law. This provision is the embodiment of carrying out economic system reform and expanding the autonomy of enterprise management, which has changed the concept of management power used in the past, and there is a qualitative difference whether the word management is removed or not. Whether the right to operate state-owned enterprises is a question of civil law or economic law is one of the controversial issues of the object of adjustment of civil law and economic law. Some scholars who advocate the Great Economic Law believe that the right to operate is not produced by the relationship between equal subjects, nor is it a civil right. Some scholars say that the surname of state-owned enterprises is "country" rather than "people", and the right to operate should be placed in the economic law. Scholars who advocate civil law believe that the basis of the right to operate is not the same as the right to operate itself, and the right to operate is a civil right with the nature of real right. When discussing the revised draft of the General Principles of Civil Law, a scholar emphasized that I attended this seminar just to insist that the General Principles of Civil Law should have the concept of "management power". Finally, the legislature adopted the opinions of civil law scholars and implemented them in Article 82 of the General Principles of Civil Law.
Special provisions stipulate individual rights.
The fifth chapter of the General Principles of Civil Law is civil rights, and the fourth section is personal rights. When drafting, some scholars suggested that individual rights should be highlighted and written in detail. The reason is that our country didn't protect individual rights enough in the past, and there were many cases of arbitrary violations of individual rights. Everyone agrees with this opinion. There are eight articles in the fourth section, which should be said to be more detailed under the conditions at that time. Chapter VI Civil Liability "Civil Tort Liability" specifically stipulates the liability for infringement of personal rights.
In the past, civil law scholars denied and criticized the compensation system for mental damage in western countries for a long time, and discussed whether to stipulate compensation for mental damage in the draft. The mainstream view is affirmative, but the concept of "compensation for mental damage" is not directly used in the clause. Article 120 of the General Principles of Civil Law stipulates that: if a citizen's right to name, portrait, reputation and honor is infringed, he has the right to demand to stop the infringement, restore his reputation, eliminate the influence, make an apology, and may demand compensation for losses. The compensation for losses stipulated here includes compensation for mental damage.
Civil liability stipulated in special chapter
There are different opinions on whether civil liability is independent. The main reason against independence is that it is not systematic in theory and is not in harmony with the whole civil law. The main reasons in favor of a separate chapter are as follows: first, a separate chapter on civil liability improves the status of civil liability, which is conducive to strengthening the protection of civil rights and making it easy for people to understand; Second, the nature of responsibility and obligation is different, and there is no problem in theory to separate responsibility. At the symposium on General Principles of Civil Law held in February 1985, a judge said that the court welcomed this chapter, which could solve the problems that could not be followed in practice.
The liability for breach of contract stipulated in this chapter is not limited to the liability for breach of economic contract, but is general in content. Some regulations can better reflect the requirements of commodity economy. When discussing civil liability, there are great differences on whether the principle of fault liability should be applied to the liability for breach of contract. One view is that the principle of fault liability does not apply to the liability for breach of contract, and all defaulting parties should bear the responsibility except force majeure. Another view is that the principle of fault liability also applies to the liability for breach of contract. Article 106 of the General Principles of Civil Law stipulates three paragraphs. Later, scholars have different understandings of this article. Some scholars think that from the comprehensive analysis of the three contents, the liability for breach of contract is fault liability, while others think it is strict liability.
The Continuation of the Concept of Limitation of Action and the Changes of Its Content
The General Principles of Civil Law draws lessons from the concept of prescription in the Soviet Civil Code, but does not draw lessons from the concept of extinctive prescription in the German Civil Code. Referring to the Soviet Civil Code, there is no prescription. The content of the statute of limitations stipulated in the General Principles of the Civil Law is different from that stipulated in the Civil Code of the Soviet Union, which stipulates that the statute of limitations does not apply to state organs that request the return of state property illegally occupied by collective farms, other cooperative organizations, social organizations or citizens (item 2 of article 90 1). There is no similar provision in the General Principles of Civil Law. There is no disagreement in the draft on this issue.