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 are 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, individual 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 universally applicable in social life should be stipulated in the Civil Code. 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 written 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 intervention .
Fourth, the Civil Code mainly stipulates the transaction rules of entities and provides principled provisions on procedural issues that are closely related to the rules of entity transactions. For example, the real estate registration rules can make some principled 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 believe 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 public interests, 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 relations 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 doctrine. 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 a 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. I believe that the rights system established in my country’s Civil Code should include: personality rights, kinship rights, inheritance rights, property rights, and creditor’s rights. These rights have been generally recognized by the legislation, jurisprudence and doctrine of various countries, and should also be adopted by my country’s civil legislation and practice. Confirmed.
In the system of separate rules, the most controversial issue is the independent formation of personality rights. In my opinion, I believe that the inclusion of personality rights in an independent section in the Civil Code meets the need to enrich and develop the Civil Code system, and is also in line with the scientific laws for the development of the Civil Code system. Today, as mankind has entered the 21st century, we need to formulate a civil code with Chinese characteristics based on China's actual situation, and we should pay attention to innovation on the basis of reference. Civil law is the legal reflection of social and economic life, and the civil code is the summary and embodiment of a country's lifestyle.
If our country wants to formulate a new civil code that reflects China's real life and faces the 21st century, it must be consistent with the spirit of our times in terms of system structure. It must not only inherit reasonable traditions, but also make innovations based on reality. , developed. Of course, innovation is not a simple slogan, let alone "innovation" for the sake of being new and different. Any innovation must be consistent with objective laws and supported by sufficient scientific theories. The independent codification of personality rights not only has sufficient theoretical support and great practical significance, but also is completely consistent with the development law of the Civil Code system from the perspective of the system structure of the Civil Code, and is very important for the enrichment and improvement of the Civil Code system. The functions are mainly reflected in:
First, the independent codification of personality rights is in line with the internal logic of the Civil Code system structure. The civil code of the traditional civil law system does not have an independent section on personality rights, which is inherently flawed. Because civil law is essentially a law of rights, the civil law sub-principles system is completely constructed in accordance with the civil rights system. From the perspective of the civil law rights system, personality rights should occupy an important position in it. Traditional civil law pays too much attention to the property rights system, does not regard personality rights as an independent system, and even provides extremely "simple" provisions on personality rights. This in itself reflects the unreasonable phenomenon of "valuing things over people" in traditional civil law. On the other hand, since personality rights are not separately codified, their attributes as basic civil rights cannot be highlighted. Another major category of rights parallel to property rights in civil law is personal rights, including personality rights. Personal rights, as a civil subject, safeguard the independent personality of the subject and should have various rights such as life and health, personal dignity, personal freedom, name, portrait, reputation, privacy, etc., which are the main components of personal rights. Personal rights and property rights constitute two types of basic rights in civil law, and the system that regulates these two types of rights constitutes the two pillars of civil law. Some other civil rights are either included in these two types of rights, or are the product of a combination of these two types of rights (such as intellectual property rights, inheritance rights, etc.). If personality rights cannot be codified separately, it will be difficult for intellectual property rights and other rights containing personality rights to establish their due status in the Civil Code. Since in the civil law system, the difference in the nature of rights is used as the basic criterion for distinguishing each section, the separate section on personality rights is a logical and systematic requirement of the code.
Second, from the perspective of the adjustment objects of the civil law, personality rights should of course be independent. Civil law mainly regulates property relations and personal relations between equal subjects. This has not only been confirmed by legislation, but has also become common knowledge in academic circles. Property relations and personal relations are two basic types of social relations. Property relations are manifested in various types of property rights due to the adjustment of civil law. Personal relations, as a relationship related to the human body and with the human body as its content, mainly include personality relations and identity relations. In civil law, it should be expressed as personality rights and identity rights.
Third, the independent establishment of personality rights will not cause disharmony in the original system. On the contrary, it will fully expand the original system. As mentioned earlier, the sub-principle system of the Civil Code is constructed according to the structure of civil rights. Confirming personality rights as an independent right is actually constructing the entire civil code system based on the rights system. It can be said that making it independent not only inherits the existing rights system, but also is an appropriate development of this system.
Fourth, once the law of torts becomes an independent body, it will inevitably require a separate body of personality rights in the system. In the process of formulating the Civil Code, most civil law scholars in my country advocated that tort law be made into a separate volume and that the tort liability for infringement of various civil rights should be concentrated in the Civil Code. In the final analysis, tort liability aims to protect various civil rights. This requires first specifically stipulating various civil rights in the sub-provisions of the Civil Code, and then centrally stipulating civil liability for infringement, so as to form a logical combination and systematic consistency of rights and responsibilities. . If the Civil Code continues to only stipulate property rights, intellectual property rights and other rights without systematically stipulating personality rights, it will obviously lack the premise and foundation for the protection of personality rights in the tort law. If the tort law is still like the tort law of countries with traditional civil law systems and does not make key provisions on the infringement of personality rights, then the significance of an independent body of tort law will be greatly reduced, and it will not be a true Complete tort law. Moreover, the civil codes of civil law systems such as Germany do not entirely stipulate personality rights in the general provisions. Personality rights also have content in tort law. Therefore, instead of making reverse provisions in infringement, it is better to focus on personality rights separately. Regulation.
Fifth, the independent composition of personality rights is a summary of my country’s valuable experience in civil legislation.
The 1986 General Principles of Civil Law included a separate section on personal rights (Section 4) in the chapter on civil rights (Chapter 5), which was a major system breakthrough. I believe that the provisions of the chapter on civil rights in the General Principles of Civil Law have laid the foundation for the construction of the entire system of sub-provisions of our country’s civil code in the future. In the section of "Personal Rights", the "General Principles of Civil Law" uses eight articles to make relatively systematic and concentrated provisions on personal rights. In "Citizens" and "Legal Persons" (Chapter 2, Chapter 3), and "Civil Liability" (Chapter 6), there are many provisions involving the confirmation and protection of personal rights. It is rare in the civil legislation of various countries in the world to stipulate so many articles on personality rights in one basic law. What is particularly noteworthy is that the General Principles of Civil Law stipulates personal rights in parallel with property rights, creditor's rights, and intellectual property rights. This is also unprecedented in the civil legislation of various countries. This system itself means that my country's civil legislation has integrated the personality rights system. It is juxtaposed with other legal systems, thus providing sufficient legislative basis for the independent codification of personality rights law in the Civil Code. The system established by the General Principles of Civil Law is a legislative achievement that is incomparable to the civil codes of other countries. It is an advanced legislative experience that has been proven by practice. It is also a scientific system generally recognized by civil law scholars. Since the provisions on civil rights in the General Principles of Civil Law have constructed an unprecedented new system and have had a profound impact on my country's civil judicial practice and civil law theory, we have no reason to abandon this valuable experience. The development of any country's legal system is the result of long-term accumulation of practice. The modernization of the legal system is also a gradual accumulation process and cannot be achieved overnight. Therefore, when formulating the Chinese Civil Code, the valuable experience of current civil legislation will not be used without sufficient legitimate reasons. It should not be abandoned, but should be retained. This determines that we should include personality rights as an independent part in the formulation of the Civil Code.
Personality rights, kinship rights, inheritance rights, property rights, and creditor's rights are some basic civil rights generally recognized in modern society. They are necessary rights for civil subjects to participate in normal social life and economic exchanges, and Its connotations are relatively mature, so it is necessary to confirm it through the Civil Code rather than some separate laws. The divided rights system should be constructed based on rights that have matured and are widely accepted or urgently needed in social life. Of course, it should also provide sufficient legal space for the growth of new rights in the future.
The key to the problem is how to arrange civil rights so as to conform to the logic of the Civil Code system. I believe that in establishing this system, we should focus on the following ideas: First of all, we should emphasize the basic concept that personality rights should take precedence over property rights. Therefore, personality rights should be placed first in civil rights. Personal dignity, personal value and personal integrity should be placed in a more important position than property rights. They are the highest legal interests. Because on the one hand, modern civil law should fully embody the spirit of humanism and emphasize the ultimate care for individuals. Therefore, personal interests, which are more important in terms of personal interests, should be placed before property interests and given priority protection. On the other hand, compared with personality rights, property rights are not as important to individuals as personality rights. Just imagine if life, health, and freedom cannot be guaranteed, what is the use of the so-called "millions of wealth"? It should also be noted that personality rights and property belong to individuals, but personal safety and human dignity involve social interests. This is just as Section 85 of the Restatement of Torts in the United States holds that "the value of human life and limbs not only belongs to him personally, but also to the entire society. Therefore, its value is higher than the interests of land owners." In the Civil Code submitted to the Standing Committee of the National People's Congress for review In the draft, the property rights law is placed at the top of each chapter in the Civil Code. This is mainly due to the system in Chapter 5 "Civil Rights" of the General Principles of the Civil Code. This chapter first stipulates the content of property rights. Therefore, the legislative Finally, property rights are placed at the top of each section in the sub-rules. I think this approach, although not unfounded, is still questionable in theory. After all, compared with property rights and personality rights, personality rights are more important. Secondly, rights closely related to the person take precedence over general property rights. Therefore, relevant family rights and inheritance rights should also take priority over property rights such as real rights and creditor's rights. Regulations on marriage and family and personality rights belong to the same category of personal relationships, and the two are more closely related, so it makes sense to place them after personality rights and before property rights. Third, regarding the relationship between property rights and creditor's rights, it is more scientific that the draft Civil Code places property rights before creditor's rights. After all, property rights are the prerequisite for the creation of creditor's rights, and transaction relationships can only occur when property rights are clear.
Fourth, regarding the concept of creditor's rights, the draft of my country's Civil Code does not establish an independent general provision on creditor's rights. The concept of debt and several forms of debt other than contracts (unjust enrichment and management without cause) are in the chapter on civil rights in the general provisions. stipulated. I believe that after the independence of the Tort Law, especially when the General Principles of the Contract Law of our country are already very substantial and complete, there is no need to stipulate the General Principles of the Law of Obligations that are largely overlapping with the General Principles of the Contract Law. However, from the perspective of the construction of the Civil Code system, property rights are a concept corresponding to claims. The property rights law has been made into an independent part, and the claim law should also be made into an independent part. Of course, the general provisions related to claims should be simplified as much as possible. It may be considered that there are no general provisions in the contract law. Some supplementary provisions are made to the content of the provisions. According to such a logical sequence, the sub-provision system of the Civil Code should be the general provisions of personality rights, family law, inheritance law, property rights, general provisions of creditor's rights, and contract law.
After the various sections on civil rights in the Civil Code, there should be a tort liability section that protects various civil rights, which requires the tort law to be separated into an independent section. On the surface, stipulating an independent tort liability section seems to conflict with the practice of constructing sub-provisions of the Civil Code based on the theory of legal relationships, because the general provisions stipulate subjects, objects and behaviors, while the sub-provisions should be developed based on the content and rights of legal relationships. If the civil liability system is added, it seems that the system of separate provisions will become inharmonious with the general provisions, that is, the separate provisions will be developed with double standards. In my opinion, the idea of ??constructing a system of subdivisions of the Civil Code based on the theory of legal relations has not been undermined by the addition of an independent tort liability section. Because: on the one hand, the elements of legal relationships should not only include the subject, object, behavior and content, but also responsibility, because responsibility is not only the result of the infringement of civil rights, but also the consequence of the violation of civil obligations. Without responsibility, there are no rights and no obligations. Violation will not result in liability. Therefore, since civil rights and civil obligations are stipulated, civil liability must be stipulated. Therefore, after listing various civil rights in detail in the sub-principles system, it is logically more rigorous and self-consistent to stipulate a complete tort liability system, which can more clearly and completely express the process of the emergence and development of a civil legal relationship. . On the contrary, it only stipulates rights without responsibilities, cannot determine the remedies for rights, and the elements of legal relationships are incomplete. On the other hand, since we have already stipulated the general provisions of civil liability in the General Provisions, for example, the essential issues of various civil liabilities have been stipulated in the General Provisions, so the provision of tort liability in the sub-provisions can echo the general provisions. A complete civil liability system is constructed in the Civil Code. Torts are the result of infringement of various civil rights, so tort law should be placed after various rights. 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. "Basic Issues in Relatives and Inheritance Law" by Chen Qiyan, 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".