How far is the distance between common sense and facts?

On a topic of the French-German Civil Code, people get knowledge from teachers and textbooks, and a lot of knowledge is passed down from generation to generation and becomes common sense. Once a piece of knowledge becomes common sense, it is self-evident, without reasons, facts and thinking. Famous law professors generally hate those remarks that doubt common sense, and they will never be soft when they tick off papers and works that lack common sense, because doubting common sense is actually doubting the knowledge of famous law professors-if common sense is wrong, it means that famous law professors need to study again. However, the probability that common sense is wrong is actually great, not only because of the changes of the times, but also because of the limitations of understanding. Civil law is the home of conceptual law, and a lot of common sense comes from the ideas of one or several civil law professors, which inevitably brings congenital disease genes. It seems to be a common sense that "the French Civil Code is a typical civil code in the period of free capitalism and the German Civil Code is a typical civil code in the period of monopoly capitalism". [1] We don't know who first commented on the civil codes of France and Germany. It is said that Engels, the great revolutionary mentor, thought the French Civil Code was a typical bourgeois social code. [2] It seems that the pedigree of this common sense is quite noble. We haven't found such historical data to evaluate the civil codes of France and Germany. It is said that 1804 belongs to the middle period of free capitalism and 1900 belongs to the early period of monopoly capitalism. [3] It seems that the background of this common sense is quite real. However, we can read the reasons for evaluating the civil code of France and Germany: the three principles of the French civil code-absolute ownership, freedom of contract and fault liability-reflect the requirements of liberal capitalism, while the German civil code modifies the three principles out of the need of monopoly capitalism. [4] The three principles and their changes have such a corresponding relationship with the development stage of capitalism, and the logic of this common sense naturally seems quite reasonable. However, it seems that this is not necessarily the case. Let's look at the French Civil Code first. Decades before the birth of the French Civil Code was an era when the French emerging bourgeoisie competed for political power. From the constitutional monarchy to gironde, from jacobins to the Zeyo Party, the situation was changeable and experienced revolution and counter-revolution. From 65438 to 0804, the French bourgeoisie that seized power just began to realize the political ideal and goal of capitalism, and capitalism was not a universal reality in France. As we all know, it was the industrial revolution that gave birth to the capitalist society, and the development level of the industrial revolution is also the development level of capitalism. Historians tell us: "From 18 15, French industry has developed greatly, but by 1848, France is still an agricultural country to a great extent." [5] 18 10, there were about 200 steam engines in France, most of which were outdated single-acting models. After the 1920s, some ironworks began to use machines. The industrial revolution in France was not launched until Napoleon was defeated in 18 15, and it was basically completed by the end of 1960s. [6] Historians also tell us that France's industrial revolution was backward because jacobins overthrew the feudal land system after the reform, and most farmers were assigned land, and France became a small-scale peasant economy country. However, the small-scale peasant economy in France has not been eliminated in the competition like Britain and the United States, but has existed widely and for a long time, which has seriously hindered the transfer of rural labor force, the expansion of domestic market and the development of large-scale machinery industry, and has had a negative impact on the industrialization and capitalist development in France. [7] In other words, France in 1804 has not really entered the capitalist society. How does a small peasant society create a typical civil code of liberal capitalism? We must first feel Napoleon's wisdom, foresight and imagination, and at the same time, we can't help but feel the unparalleled associative power of later civil law professors. The French Civil Code does have three principles: absolute ownership, freedom of contract and fault liability, but are these three principles the labels of free capitalism? In the early Roman law, ownership was absolute to the extent that the ownership of houses built on other people's land belonged to the landowner. [8] In the later period of Roman law, the freedom of contract was no less than that of any subsequent era, including France in 1804. [9] As a revision of the liability for consequences, the liability for fault was established in the Aquilia Law around 287 BC. [10] If the three principles outline the blueprint of liberal capitalism, then almost all of this blueprint comes from Roman law. Why not say that Roman law is a typical representative of liberal capitalism? It is the work of civil law professors in later generations to crown the three principles with the principles of modern civil law, which has nothing to do with Napoleon and his legislative assistants, because in the view of Portalis, chairman of the drafting committee, the provisions of the property law are "consistent with the laws of any era, and we only change or modify those parts that are no longer suitable for the actual situation or have been proved inconvenient by experience". "As for the contract law, we have developed the nature applicable to all electronic reverse auctions." [1 1] What needs to be added is that in the tort law, the French civil code does not only have fault liability. Articles 1384 and 1385 of the Code also stipulate strict responsibilities such as employment, guardianship and damage caused by animals. These three principles may be in line with the free capitalist society, even more in line with Roman society than Roman law. Of course, it is understandable to use these three principles to explain liberal capitalism, but it is a bit like some civil law professors who always think that the writings of Taiwan Province scholars are their own research results. The French Civil Code has not only three principles, but also specific systems and regulations. When we read Article 524 of the French Civil Code, we seem to see the charming rural scenery of France at the end of 18. Livestock, farm tools, seeds, beehives and brewing barrels all appear in the French Civil Code, which has dealt with the problem of how to deal with fruit trees when they arrive in the yard next door. Perhaps it is in the French civil code that we can't see many urban landscapes, so some scholars think that the French civil code is "18th century agricultural management law", and "the landscape displayed is not urban scenery, but rural scenery." Of course, pastoral scenery is not the standard to judge the nature of the code, and any society will have beautiful pastoral scenery. But if there is only rural scenery without urban scenery, at least it shows the vision and focus of the code. There are no cars, trains, high-rise buildings and enterprise companies in the French Civil Code. For fear of feudal restoration, the French Civil Code did not even recognize the legal person status, in order to prevent the feudal aristocratic forces from using churches, guilds and other organizational forms to engage in restoration activities. Without these, it doesn't mean that the French Civil Code can't be applied to a liberal capitalist society, but it means that the French Civil Code is not born for liberal capitalism-it doesn't care or care what a liberal capitalist society should have. The French Civil Code first rebuilt the legal order. Napoleon clearly realized that "now is not the time to talk about philosophy, but the time to rule"; At the same time, in order to unify the law, the southern part of France is a typical statutory law area, and the northern part is a common law area based on Germanic law. It is necessary to "formulate a law that can cover all matters and dominate all property and people under French rule." [12] Let's look at the German Civil Code. Around 1896, monopoly organizations did appear in Germany, and they developed rapidly. The first cartel in Germany came into being in 1857. In l870, it increased to 6, 1877 and reached 14. It was once increased to 350 in 1990s, and 275 were retained at the end of 19. 1905 recovered to 385. 19 10, and the number of card-holding institutions increased to 500-600. Among them, about 200 of the 385 cartels in 1905 are syndicated. [13] 1897, the German Supreme Court also ruled that the monopoly agreement concluded by Poole, Konzern and the cartel was legal. But does this mean that Germany is already a society dominated by monopoly capitalism? Historians tell us that due to the development of production and the intensification of competition, monopoly organizations in this period did not exist for a long time and never expanded to more than one region. [14] Monopoly organizations are also unstable, basically the lowest form-cartel. Historians also tell us that although the process of production and capital concentration in Germany has obviously accelerated since 1882, the degree of concentration and the scale of enterprises are far lower than those in the United States at the same time. [15] This is understandable. Germany did not achieve reunification until 187 1, and only then did it have a relatively solid political foundation for the development of capitalism. Therefore, it is impossible to reach the so-called highest stage of capitalism in just over 20 years. [16] The emergence of monopoly organizations is not so much that German capitalism has reached a monopoly stage, but rather that industries such as railways, steel, electricity and salt coal have the nature of resource monopoly or technology monopoly, which can explain why German monopoly organizations always appeared in these industries at that time. 1896 Germany is at most a bud of monopoly capitalism. In this social background, the only possibility to formulate a typical monopoly capitalist civil code is that legislators have superhuman imagination. The problem is that the German Civil Code is not a product of imagination. The German Civil Code does restrict the freedom of ownership and contract, but there is no evidence that it caters to the interests of monopoly capitalists. After decades of drafting and debate, it seems that there is no monopoly interest group lobbying legislators to give up absolute ownership and restrict party autonomy. If you know anything about the political background of Germany at that time, you should know that before the reunification of Germany, there were many states, some of which were very powerful and had their own legal habits. Unification was achieved through a top-down war, without undermining the interests and strength of all countries. In order to safeguard national unity, we have to adopt a conservative and compromise approach. Therefore, politically, Germany is "a military autocratic country that whitewashes the facade in the form of parliament, mixed with feudal remnants, has been influenced by the bourgeoisie, organized according to the bureaucratic system, and protected by the police." Economically, [17] emphasized the state's intervention in the economy, so as to ensure the unification of the empire and consolidate the gains in Europe and meet the needs of military and national defense, thus taking the road of "enriching Qiang Bing". [18] The unification of laws is one of the basic ways to safeguard national unity. As an important part of the unified law, the German Civil Code also needs to be conservative and compromised to meet the political and economic needs of Germany at that time. Moreover, according to experts' research, German bourgeoisie and proletariat appeared as independent political forces almost at the same time in the 1940s of 19, while German feudal Yong Ke landlords were still in an absolute dominant position for decades after the reunification of Germany. The bourgeoisie wants to overthrow the feudal brave landlord, the proletariat wants to overthrow the bourgeoisie after overthrowing the landlord class, and the bourgeoisie has to compromise with the feudal forces. [19] In this way, Germany still retains a strong feudal residue after entering capitalism. As can be seen from the above, if absolute ownership and freedom of contract entrusted the interests of the bourgeoisie, then in Germany at that time, restricting ownership and freedom of contract was only a powerful weapon for feudal brave landlords to counterattack the bourgeoisie, which had nothing to do with monopoly capitalism. From this point of view, restricting ownership and freedom of contract is not the patent of monopoly capitalism, because the German civil code restricts ownership and freedom of contract, and it is tantamount to saying that the recent state intervention in western countries to deal with the financial crisis is engaged in a planned economy. In addition to fault liability, the German Civil Code also stipulates the case of no-fault liability, which was promoted to the height of limiting fault liability principle by later civil law professors, in order to prove that there are essential differences between the monopoly capitalist civil code and the liberal capitalist French civil code in three principles. Is the principle of imputation really related to the nature of capitalist society? Who has argued that liberal capitalism likes the principle of fault liability and monopoly capitalism doesn't like it very much? The principle of imputation of responsibility solves a problem: when an act causes personal and property damage to others, whether fault should be regarded as a constituent element of responsibility, the factor to be considered is the act itself rather than others. This is a purely technical judgment. The principle of no-fault liability is applicable to some highly dangerous behaviors, and the principle of fault liability is still applicable to general behaviors. Therefore, the principle of imputation is only a technical rule and does not represent the essence of free or monopoly capitalism. Linking a technical principle with the nature of a society, just as many civil law professors easily link the role of contracts with the fate of market economy and reform and opening up, is a typical far-fetched. Logically speaking, some high-risk behaviors are mainly the products of industrial technology, which hardly exist in agricultural society. Therefore, determining a special imputation principle should be understood as adding the imputation principle to the fault liability principle, rather than limiting the fault liability principle and its application. As for the liability for damage caused by animals stipulated in Article 833 of the German Civil Code, there are also provisions in the French Civil Code, such as Article 1385 on the liability of animal breeders, not to mention the principle of imputation of monopoly capitalism. Having said that, we can generally draw a conclusion: the Franco-German Civil Code has no internal relationship with the freedom and monopoly of capitalism, but the artificial relationship between civil law professors in later generations, and the so-called common sense is just academic garbage formed by academic games. This conclusion has no influence on the position and influence of the French-German civil code in history-the reputation of the French-German civil code is not obtained by virtue of the society it represents, but helps us to treat knowledge rationally. For a long time, civil law professors have concocted a lot of useless and erroneous knowledge to show their knowledge. These rubbish-like knowledge [20] are piled up in classrooms and textbooks, oppressing generations of students and suffocating their thinking vitality, so that there is almost no fresh knowledge in China's civil law at present. It is the responsibility of a conscientious civil law teacher to eliminate junk knowledge, purify the teaching and academic environment, and advocate an atmosphere of independent thinking and rigorous scholarship. -Wang Quandi, editor-in-chief: General Civil Law (2nd Edition), Fudan University Press, 2004, pp. 2 and 3; Liu: Research on the Formulation of China's Civil Code —— Also on the Social Foundation and Implementation Guarantee of the Formulation of the Civil Code, Shandong People's Publishing House, 2003, pp. 2 and 3; Yang Nian and Editor-in-Chief: General Theory of Civil Law, China Fangzheng Publishing House, 1999, p. 20; Zhang Yumin: Civil Law, Renmin University of China Press, 2003, p. 16; Liu Kaixiang: General Civil Law, Peking University Publishing House, 2006, p. 1 1; Wang Limin, editor-in-chief: Civil Law, China Financial and Economic Press, 2003, p. 7; Li Renyu and Chen Dun: Civil Law, Contemporary World Press, 2002, p. 4; He, editor-in-chief: History of Foreign Legal System (4th Edition), Law Press, 25 1, 2006. [2]1804 French Civil Code is the earliest bourgeois civil code in the world. Based on the "legal ladder" of Roman law, it divides the civil code into three parts: personal law, property and various restrictions on ownership, and various methods of obtaining property. It adapts to the capitalist commodity economy in the period of free competition, takes the adjustment of all necessary legal relations of commodity owners as the main content, and confirms three basic principles: inviolability of private property, freedom of contract and liability for negligence. The French Civil Code began to establish a relatively complete civil law system, which Sigus called a' code of a typical bourgeois society'. Since then, the French Civil Code has become the code used by countries all over the world as the basis for compiling codes. (Yang Nian and Editor-in-Chief: General Theory of Civil Law, China Founder Publishing House, 1999, p. 20). [3] Generally speaking, China's political economy thinks that capitalism has gone through two periods, one is the period of free capitalism, from the middle of18th century to the generation of19th century, and the other is the period of monopoly capitalism, from the end of19th century to the beginning of 20th century. [4] "1804 promulgated the" French Civil Code "marks the beginning of modern civil law. Based on Roman law, it skillfully uses legal forms to directly' translate' the economic rules of the newly formed capitalist society into legal language, which first reflects the objective requirements of the commodity economy in the period of free capitalism, … "(Yin Tian, editor-in-chief: Civil Law Course (2nd edition). "... since the end of19th century, capitalism has entered a period of monopoly. 1900 The German Civil Code, which came into effect, is a concentrated reflection of capitalist economic relations in this period "(edited by Yin Tian. Civil Law Course (2nd Edition), Law Press, 2006, p. 5). [5] Li Shian: A History of Capitalism in Europe and America, Renmin University of China Press, 2004, p. 126. [6] See Song Zexing and Fan Kang: World Economic History (Volume I), Economic Science Press, 1998, p.12-14 [7] See Gao Debu and Wang Jue: World Economic History. [8] See Pietro Peng Fande: Textbook of Roman Law, translated by Huang Feng, China University of Political Science and Law Press, 2005, p. 155. [9] See Ping Jiang and Mi Jian: Basis of Roman Law, China University of Political Science and Law Press, 2004, pp. 332-333. [10] See note 9 above, Jiang Ping and Mi Jianshu, p. 375. [1 1] Quoted from Fu Jingkun: What has changed? Foreign Law Translation Review,No. 1996,No. 1. [12] Selected translations by Wu Xu Yang Renkun:1French bourgeois revolution at the end of the 8th century, The Commercial Press, 1989, p. 22. [13] See Note 6 above, Song Ze Xinghe Fan Kangshu, pp. 272-273. [14] See note 5 above, by Li Shian, page 148. [15] See Note 6 above, Song Ze Xinghe Fan Kangshu, pp. 268-269. [16] It may be worth studying that capitalism is divided into two stages: free capitalism and monopoly capitalism. Most of our generation learned about liberal capitalism and monopoly capitalism from Lenin's book Imperialism is the Highest Stage of Capitalism during the Cultural Revolution, which was an era of worshipping revolutionary teachers. Rereading Lenin's book, we find the data Lenin used to prove German monopoly capitalism intriguing. For example, "1907, 580 enterprises in Germany employed more than 1000 workers. Their workers account for almost one-tenth of the total (1380,000), and their steam power and electricity account for almost one-third (32%) of the total. Selected Works of Lenin, Volume II, People's Publishing House, 1972, p. 744). A thousand-person enterprise is a small and medium-sized enterprise today, and an enterprise employing hundreds of thousands of people may not be able to monopolize the whole industry. Obviously, the monopoly seen by Lenin is actually a monopoly under the historical conditions that capitalism has not yet fully developed, which is not enough to reflect all the historical laws of capitalism. Whether monopoly is the characteristic of the advanced stage of capitalism and whether capitalism has such an advanced stage needs new research in political economy. [17] Selected Works of Marx and Engels (Volume III), People's Publishing House, 1995, Page 3 15 [18] See Ding's: A General History of Germany, Shanghai Academy of Social Sciences Press, 2002, Page 225. [19] See Huang Zhen et al.: Research on Key and Theoretical Issues in Modern World History, Huazhong Normal University Press, 1989, p. 147- 148. (Meng, Wuhan University Law School) Source: Law Review, No.6, 2009