The Constitution of People's Republic of China (PRC) is the fundamental law of our country, and the General Principles of the Civil Law of People's Republic of China (PRC) is the sub-law of the Constitution of People's Republic of China (PRC), that is, the departmental law.
All departmental laws are sub-laws of the Constitution, but the distance and connection points are different from the Constitution. Constitutional law is the closest to the constitution. The General Principles of Civil Law of People's Republic of China (PRC) is the largest legal group in the legal system of various departments under the Constitution, and the Constitution is mainly a guidance of ideas and principles. The General Principles of the Civil Law of People's Republic of China (PRC) regulates the "external" private rights relationship in the constitutional field.
In the legal system, the constitution is the basis of various departmental laws, and all departmental laws should be based on the constitution and must not contradict it; At the same time, departmental laws are also the formulation and implementation of the constitution, and are the extension and embodiment of the spirit and value of the constitution. Departmental law needs the guidance and norms of the constitution to avoid deviating from the constitutional track; The constitution also needs the refinement and supplement of departmental laws to carry out its own thoughts and ideas.
Constitution and civil law
Civil law norms came into being before the constitution. [22] Historically, the Constitution is not so much the source of civil law as the foundation of civil law. The ideas of freedom, equality and rule of law in modern society originate from civil law, not constitution. Civil law can provide ideological nutrition for the constitution, unlike other departmental laws, which mainly rely on the constitution to provide them with ideological nutrition and can nourish the constitution. Civil law is the only departmental law. For example, the principle of equality in the constitution comes from the principle of equality in civil law (from the perspective of legal history and legal thought history, not from the standpoint of today's legal system), and then it is transformed into the principle of equality in other departments as constitutional principles, such as administrative law, procedural law and criminal law. Although the criminal law has a longer history than the constitution, it is the result of the constitutional guidance and regulation after the constitutional society. "Under the orientation of right-departmentalism, the traditional civil law has formed a series of rights types, among which personal dignity and equality, sacred private rights, economic freedom and personal freedom provide a concrete blueprint for the modern constitution to establish its own normative values and rights types. It is on the basis of referring to the former that the latter constructs its own system of rights norms. It is just that the rights of civil law are the rights of private individuals in civil society, while the rights of the constitution are mainly the rights enjoyed by individuals relative to political countries. " [23] "Civil Law" once provided some important embryonic forms of institutional models for the modern constitution. For example, the social contract theory of modern natural law school is obviously inspired by the contract principle in civil law, and then it is believed that state power should be established according to the social contract of free people. In its view, the concrete form of this' social contract' is the constitution, or the constitution is a' fundamental contract'. "[24] As a" fundamental contract ",it is similar to the civil contract in that in the constitutional relationship at the constitutional stage, the relationship between people is just like the relationship between the parties in the civil legal relationship-equal dialogue, * * consultation and autonomy of will. However, there are also differences. If any party has different opinions when a civil contract is established, it can be withdrawn at any time, and once it is withdrawn, it will no longer have an interest in the contract; In the process of making a constitution, it is difficult for any individual to quit or quit, which may be even more unfavorable to himself. Even if some people disagree with this constitution or some of its contents, they still have to accept it according to the principle of "the minority is subordinate to the majority". Therefore, power (social power) has already appeared when the fundamental contract of the Constitution is concluded, and the submission of a few people has already appeared. As a contract, the constitution is much more complicated than the civil contract. The latter can be implemented once it is formulated, while the former needs complex reprocessing (legislation to concretize it) to really operate. The former involves more subjects than the latter. Even if a civil contract has multiple parties, the relationship between them is only a plane relationship, while the constitutional contract presents a multi-faceted, multi-angle and multi-level three-dimensional space-the complex relationship between power and power, right and power.
Although the civil law is far from the constitution, the distance from the constitution cannot be used as a basis for judging the importance of law. The farther away from the constitution, the less the constitution interferes with it, that is, the farther away from the state power (the local constitution with state power will at least have principled provisions). In a sense, the field that the Constitution does not set foot in is to warn the state power not to set foot in or set foot in, which means that it belongs to the field of "private law autonomy", which is completely consistent with the highest value pursuit of the Constitution to protect human rights from state power infringement. Therefore, in terms of form, civil law is farthest from the Constitution, but in terms of spiritual value, it is closest to the Constitution. Other laws are just similar to the constitution, while civil law is similar to the constitution. Other laws may only be ways and means for the Constitution to realize its ultimate value, such as protecting human rights through decentralization and power restriction. The ultimate value of civil law itself is the ultimate value of constitution. Even after the disappearance of the constitution, civil law may last forever, that is, state power disappears and human rights last forever. In this sense, it is said that. In Hayek's view, the paradox of constitutional attribute lies in that it is not only the superstructure of public law, but its ultimate goal is to implement private law. Both Hayek and Dai Xue believe that the constitution is the result of private law, not the origin of private law. Hayek further pointed out that the rule of law is the rule of private law by public law, and constitutionalism implements private law in the form of constitutional public law. [25]
But "public law is perishable and private law is eternal" [26] is only a picture of the distant future. Judging from the current development of human history, the Constitution is still in the youthful age with vigorous vitality, and even in some countries, it is still in an immature childhood. In today's constitutional society, the broader vision and more complex structure of the constitution, especially the natural law power it establishes in the name of people's speech, make the constitution the "supreme law" in the legal system, and the civil law has to be lower than the constitution in legal rank. Legislators should also take the constitution as the basis when formulating civil laws. The civil law norms before the Constitution can only continue to apply if they do not conflict with the Constitution, and the civil law may be subject to unconstitutional review at any time. Although the civil law before the constitution does not need the constitution as the basis, it is mainly based on people's habits, historical traditions, legal concepts and the spirit of natural law. However, after the constitution, all this is contained in the constitution, which is the crystallization of people's habits, historical traditions, legal concepts and the spirit of natural law. In the past, they were scattered in textbooks, academic works, village regulations or code compilation, and also scattered in people's minds. Now, they are all concentrated in a constitutional text, which is clearly and centrally expressed by the solemn basic law norms. Therefore, the Constitution shines with sacred glory and becomes the "mother of all laws".
"Private law is recognized as a rule to regulate social relations. In this regard, apart from ensuring the orderly settlement of disputes, the state has no direct interest, and public law is regarded as the legal framework for the relations between state institutions and between the state and citizens. " [27] Civil law, as a typical private law, mainly adjusts the relationship between rights and obligations of private individuals, while the Constitution focuses on adjusting the relationship between power and rights, and only makes concise principles on the relationship between rights (such as equality of rights and not infringing on the legitimate rights of others). ), the specific content is handled by the civil law itself. If the Constitution exhorts and enjoins the constitutional science (many relatively specific rules are formulated for it) and is strict with the procedural law, criminal law and administrative law, then it is kind to the civil law, even a little laissez-faire. When the civil law is the normative object of the constitution, the constitution is more lenient to the civil law than other laws, and legislators have more room to play when formulating civil law than constitutional laws, administrative laws, procedural laws and other laws. At this time, the constitutional restrictions on them may be far less than social factors such as folk customs, traditional habits, history and culture. When some behaviors are the object of civil law norms, civil law is also more relaxed than other laws. For example, the autonomy of the parties in civil legal relationship is obviously more than that in administrative legal relationship, and the parties in civil legal relationship have more freedom of choice, while the will of the parties in administrative legal relationship is difficult to influence the decision of the administrative organ, and the administrative organ is administering according to law rather than negotiating with each other. Compared with criminal law, administrative law and procedural law, civil law is not affected by constitutional changes, and its response to constitutional changes is relatively slow. No matter how the government changes and the regime changes, the basic lifestyle of ordinary people remains unchanged, and the rules followed by the comings and goings of civil society have not changed much. "Even when the whole government structure is changed due to revolution or conquest, most rules of proper conduct, that is, private law and criminal law, will still be effective-even in those occasions where the revolution is mainly caused by the desire to change some rules of proper conduct." [28]
The basic principles of civil law such as equality, voluntariness, fairness, honesty and credit, public order and good customs, and prohibition of abuse of rights are directly or indirectly related to the relevant principles of the Constitution. Because civil law exists before the constitution, the basic principles of civil law are not so much the "extension" of constitutional principles as the effective "docking" between them and the later constitution. Among them, the principle of equality is completely consistent with the principle of equality in the constitution, but the principle of equality in the constitution is broader than that in the civil law. Other principles, such as fairness, honesty and credit, public order and good customs, belong to civil law, but they are also connected with the principles of consistency of rights and obligations and boundary of rights in the Constitution. Honesty and credibility is a requirement when getting along with people, which involves two kinds of interests: the interests between the parties and the interests between the parties and the society. "In the interest relationship between the parties, the principle of good faith requires respecting the interests of others, treating others' things with the attention of treating their own things, and ensuring that all parties in the legal relationship can get their due interests and must not harm others. ..... In the relationship between the parties and social interests, the principle of good faith requires that the parties shall not harm the interests of third parties and society with their own civil activities, and must exercise their rights within the scope of legal rights in a manner consistent with their social and economic purposes. " [30] The principle of fairness is to "distribute rights and obligations reasonably and appropriately among civil subjects" through consultation and balance, "so that civil subjects can enjoy rights while realizing their own interests, and at the same time bear corresponding obligations for realizing the interests of the other party ... Civil law not only encourages people to obtain rights through proper behavior, but also turns others into tools for their own interests within the scope of rights, and does not allow people to enjoy rights without obligations, and refuses to act as tools for the interests of others within the scope prescribed by law. [3 1] This is completely consistent with the principle of the consistency of rights and obligations and the principle of the boundary of rights stipulated in Article 33 and Article 5 1 of our Constitution, and it is the expression of the constitutional principle of citizens exercising their rights in civil law. The requirement of "giving consideration to public welfare" makes there exist some "public law" factors in civil law, which is a bridge between civil law and constitution.
However, there are some obvious moral factors in the basic principles of civil law. For example, the principle of good faith certainly embodies the spirit of the constitutional principle of rule of law, and its purpose is to maintain the order of social and economic transactions (a kind of public welfare), and order is the basic value of rule of law. "Law aims at creating a just social order." [33] However, the principle of good faith is not entirely a legal principle. It initially established a moral standard of "honest businessman". "Historically, the moral principle of good faith has long existed in the form of business habits, and as a supplement to the law, it plays a certain role in adjusting civil legal relations." After the principle of good faith was absorbed by civil law, it was first regarded as the principle of the relationship between debts, and then "rose to the basic principle covering the whole field of private law" and became its "imperial clause" [34]. The moral component of this principle often comes directly from social life, not directly from the constitution. When it is the basic principle of civil law, its main function is to guide the whole civil law and construct specific civil law systems and norms. This guiding role of civil law norms, that is, the role of restraining legislators, is mostly expressed through the specific provisions of civil law. For example, Article 106 of the General Principles of the Civil Law stipulates: "Citizens and legal persons who violate contracts or fail to perform other obligations shall bear civil liability." Article 1 14 of China's Contract Law stipulates: "The parties may agree that one party shall pay a certain amount of liquidated damages to the other party according to the breach of contract, or agree on the calculation method of the amount of damages for breach of contract." These sub-principles and rules are the embodiment of the principle of good faith, emphasizing that only the parties are honest and trustworthy can maintain the order of civil law. "This order is either reflected in a certain balance of interests or on a certain moral basis." [35] In some cases, when there are no specific provisions in the civil law norms, legislators authorize judges to judge cases directly according to the principle of good faith. At this time, judges often play a moral role in this principle. What judges' creative judicial activities "create" is the application of this principle in specific cases by moral requirements. This kind of morality reflects more social factors than legal factors, and reflects the generally accepted moral standards in society. This is unimaginable in the field of procedural law that strictly requires "trial according to law" and criminal law that explicitly requires "nullum crimen sine lege". This is a unique principle in the civil law field. Therefore, it is also the embodiment of the principle of the boundary of constitutional rights. The boundary of rights determined by criminal law, administrative law and procedural law is clear and relatively solid, while the boundary of rights determined by civil law is sometimes vague, which is temporarily decided by judges.
Some specific rules and related sub-rules in civil law are derived from the basic principles in civil law, while others are directly derived from the Constitution, such as the rights of body, health and personal freedom, name, portrait, reputation and personal dignity, intellectual property rights in civil law, including copyright, patent, invention, discovery and other scientific and technological achievements, which are related to the rights of scientific research and literary creation in the Constitution, and property rights in civil law. The basic principles of secondary civil law, such as the Inheritance Law (protection of citizens' right to inherit private property, equality between men and women, care for elderly patients and the disabled, mutual understanding and mutual accommodation, solidarity and mutual assistance, and consistency of rights and obligations) [36] are often directly related to constitutional principles or rules, such as the principle of protecting citizens' right to inherit directly from Article 13 of the Constitution, [37] and the principle of directly from "the Constitution" [38] The principle of providing for the aged and raising children comes directly from Article 49 of the Constitution, [39] The principle of consistency of rights and obligations comes directly from Articles 33 and 5 1 of the Constitution, [40] and so on. Civil law norms are very similar to civil rights norms in the Constitution, but they are both rights rules, and there are obvious differences between them. The obligations arising from civil rights are the obligations of other rights subjects, while the obligations arising from constitutional rights are mainly the obligations of the state. The civil law regulates the relationship between rights, while the rights in the civil law correspond to obligations, while the rights in the constitution regulate the relationship between rights and powers, and the rights in the constitution correspond to the responsibilities of the state.