The so-called civil code system, when taking the form of a code, arranges in a certain logic the civil law rules or legal provisions that are inherently organically linked and regulate the personal and property relationships between equal subjects. system thus formed. In short, it is a logical system that organically combines various rules of civil law in the civil code. Now that China's Civil Code codification project has been launched, the primary issue facing legislators is how to construct a civil code system.
1. The necessity of establishing a civil code system
The fundamental purpose of studying the civil code system is to obtain a complete system of the civil code, so that with the support of this system A highly logical and systematic Civil Code was formulated. It can be said that the establishment of the Civil Code system is of decisive significance to the formulation of the Civil Code. The reasons are as follows:
First of all, 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. American scholar Pound believes that code is different from other legal forms in that "it shows the entire existing legal systematization model." Canadian scholar Vander Linden also believes that the essential feature of the civil code is the unity of form in which multiple parts are integrated into a whole. Loinger also pointed out that codification is different from general legislation in that the code "contains the completeness, logic, and scientificity of various effective legal rules that control the subject." Wang Yong: "Analysis and Construction of Private Rights", PhD thesis of China University of Political Science and Law in 1999, conclusion. The Civil Code is characterized by its systematicity and the logic determined by it. The system is the life of the Civil Code. A "Civil Code" that lacks systematicity and logic can only be called a "compilation of civil legislation." In other words, the Civil Code must meet the requirements of formal rationality, and this formal rationality is largely reflected in the integrity of its system. Therefore, exploring the system of the Civil Code is determined by the inherent attributes of the Civil Code itself.
Secondly, systematization not only helps to fully implement the basic concepts of civil law (such as equality, private law autonomy, good faith, maintaining transaction security, etc.) in the entire rule system of the Civil Code, but also can effectively to prevent and eliminate conflicts and contradictions between the various concepts that coexist throughout the Code. Although stand-alone civil legislation can implement one or more civil law values ??in one or several areas of social life, it cannot achieve harmony among many basic civil law values ??in all areas of social life. For example, modern civil law not only focuses on the strict protection of static property ownership, but also on the maintenance of dynamic transaction security. When there is a conflict between the two, modern civil law gives priority to protecting transaction security. This concept of giving priority to protecting transaction security is reflected in various chapters of the Civil Code. For example, the apparent agency system in the General Provisions, the bona fide acquisition system in the Property Law, and the unauthorized disposition system in the Contract Law all reflect the value choice of giving priority to protecting transaction security. Therefore, only by codifying civil legal norms based on a certain civil code system can the various values ????in civil law be implemented consistently and coordinate conflicts and contradictions between them.
Third, systematization helps to eliminate the confusion and conflicts in the current civil legal system, integrate various legal systems into an organic whole, and thereby establish an inherently harmonious and consistent civil normative system. Since many individual civil laws and regulations in our country were enacted at different stages of reform, and some laws were promulgated simply to meet the needs of a specific stage of reform, or were expedient measures to adapt to a specific socio-economic environment, therefore Legislators usually lack a common overall consideration, which leads to inevitable conflicts or contradictions between these laws and regulations. In the process of formulating the Civil Code, by establishing the system of the Civil Code, the confusion and conflicts in the current civil legal system can be eliminated, and various legal systems can be integrated into an organic whole, thereby achieving the unification of my country's civil laws and establishing internal harmony. A consistent system of civil legal norms.
After the establishment of the Civil Code system, a pattern can be formed in the common civil law that distinguishes general provisions from specific provisions. In the internal structure of civil law, harmony can also be formed between the Civil Code and individual civil legislation, especially commercial special laws. system. After the construction of the civil code system, it can not only provide judges with a complete, harmonious and clear system of adjudication rules, but also provide a corresponding system of behavioral norms for parties engaged in civil and commercial activities. Systematization not only helps eliminate conflicts and contradictions among various civil legal systems, but also effectively ensures the rigor and unity of various concepts and rules in the entire civil legal system through systematization. For example, in my country's current civil legislation, there are many concepts such as "civil behavior", "civil activities", "civil legal behavior", "legal behavior", etc. Which of these concepts is a genus concept and which one is a species concept? How to define their connotation and denotation is difficult for civil law scholars to figure out. This requires codification to solve the problem of rigor and unity of civil law concepts and categories.
Fourth, systematization helps to comply with and apply civil law norms. On the one hand, the codification of civil law can provide great convenience for judges and other legal practitioners to apply civil law. An important feature that makes the civil code superior to case law is the convenience of application; on the other hand, systematization will also promote Legal workers form rigorous and systematic thinking concepts when applying civil law. For example, when analyzing what kind of claims the plaintiff enjoys in a specific case, one should first determine whether there is a contractual relationship between the plaintiff and the defendant. If there is, a right of claim under contract law will arise. If not, it will be judged whether there is a right to claim for management without cause or a right to unjust enrichment. Finally, it will be judged whether there is a right to claim for infringement damages. Systematization can prompt legal workers to use systematic concepts to analyze and solve individual cases, and resolve disputes in social life from an all-round perspective.
Fifth, systematization helps to maintain the stability of civil legal norms and ultimately achieve the stability of social life relationships and the predictability of people in social life. As Professor Huang Maorong, a scholar from Taiwan, my country, said, the legal system can not only improve the "comprehensiveness" of the law, thereby improving the "practicability" of its application, but also improve the "predictability" of the adjudication, thereby improving the "predictability" of the law. To improve the "stability of law", as long as the system constituted by it is "perfect and flawless", every legal problem can be answered satisfactorily by the operation of logic alone. Huang Maorong: "Legal Methods and Modern Civil Law", China University of Political Science and Law Press, 2001 edition, page 471. The systematization of the Civil Code is to abstract the most basic rules in civil society life and stipulate them in the Civil Code. Through the arrangement of this system, they can become stable rules and gain long-term vitality, regardless of a certain national policy. changes due to random changes. As for some special areas in social life, they can be adjusted by promulgating separate civil and commercial legislation. Although such separate legislation may change with time and place, the basic rules in civil social life will not change at will. Judging from the development history of civil codes in countries such as France and Germany, although society has gone through changes and new legal issues have emerged one after another, new issues can usually be solved within the framework of the civil code system due to the strict systematicity and logic of the code itself. Solved, the Civil Code still maintains its vitality and remains unchanged after a hundred years. This fully illustrates the importance of systematicity in ensuring the rationality of the Civil Code and thus maintaining the existence of the Civil Code. Our country is currently in the construction stage of the socialist market economy, so establishing a systematic civil code in our country has more prominent practical significance.
2. Three macro issues when establishing my country’s civil code system
A complete civil code system cannot be formed overnight, but has gone through a long historical evolution. As early as the era of Roman law, the jurist Gaius proposed a compilation system for the civil code in his book "The Ladder of Law". This system divided Roman civil law into three parts: personal law, property law and procedural law, which was later adopted. The system used by Justinian in compiling the Roman Law was later called the "Romanesque" system.
When the French Civil Code was compiled, the Roman style was adopted by the makers of civil law. However, legislators separated procedural law from the civil code and further divided property law into two parts: "property law" and "methods of acquiring property rights." . At the end of the 19th century, after decades of legal debate, the drafters of the German Civil Code adopted the civil code system proposed by the Pandekton School, which is today the so-called five-part "German" model. To be more precise, , adopted the Bavarian style of the Pandecton system. The Pandecton style system can be divided into Saxon style and Bavarian style. The organization structure of the former is general principles, property rights, creditor's rights, relatives and inheritance; the organization structure of the latter is General principles, debts, property rights, relatives, inheritance. The difference between the two lies in the different positions of property rights and creditor's rights. This position arrangement is to express the different importance of the subject. See Xu Guodong: "Two Ideas for Drafting the Civil Code: New Humanism vs. Materialism", edited by Xu Guodong: "Controversy on Drafting Ideas for the Chinese Civil Code", China University of Political Science and Law Press, 2001 edition, page 155. That is, the Civil Code is divided into five parts: General Provisions, Obligations, Property Rights, Relatives and Inheritance. Pandekton's model was later adopted by the Japanese Civil Code. However, slightly different from Germany, the Japanese Civil Code adopts a Saxon style, placing property rights before creditor's rights. The Dutch Civil Code completed in the 1990s underwent significant changes in style. After the drafters of the code cleverly combined the French law model and the German law model, they also absorbed a large amount of experience from the British and American legal systems to create the Civil Code. Classic eight-part pattern. What is particularly noteworthy is that the Code established general principles of property rights on top of creditor's rights and property rights, and transformed the general principles model of German law. After the promulgation of the Dutch Civil Code, it has been widely praised by civil law scholars in many countries, including Germany. The Russian Civil Code promulgated in 1994 has also made many new developments in the system. For example, the code divides the law of obligations into two parts to stipulate. The general provisions of the law of obligations include general provisions on obligations and general provisions on contracts, and the objects of civil rights in the general provisions. The intellectual property system is stipulated in the content. This shows that the civil code system is not static. It is a system that changes with the development of social, political, economic and cultural developments.
In the process of formulating the civil code in our country, how to determine the civil code system that is consistent with our country’s national conditions deserves in-depth and detailed study. We believe that as far as my country’s Civil Code system is concerned, there are three macro issues worthy of study, because the answers to these three questions determine the basic ideas and framework issues for the future formulation of my country’s Civil Code, and also directly determine the basic principles of the Civil Code. Structural arrangement issues.
(1) Should we completely copy the German civil code system or make reasonable reference and make innovations?
It should be admitted that since the reform in the late Qing Dynasty, China can basically be classified as a civil law country. Modern China's civil legislation and civil law doctrine absorbed a large number of concepts, rules and systems from civil law countries (such as France, Switzerland, the Soviet Union, Japan, etc.), especially German law. Mr. Mei Zhongxie, an old Chinese civil law scholar, once pointed out insightfully: "Sixty-seven out of ten of the current civil laws adopt German legislative examples, thirty-four out of ten Swiss legislative examples, and one or two out of ten French, Japanese and Soviet regulations. Mei Zhong Association: "Essentials of Civil Law", China University of Political Science and Law Press, 1998 edition, preface. There is no doubt that my country's civil legislation has indeed borrowed a lot from the excellent achievements and legislative experience of German law, both in the past and now. . However, does this mean that when we formulate the Chinese Civil Code in the 21st century, we still need to rigidly and unchangingly inherit the five-part system of the German Civil Code? Many scholars believe that since our country wants to adopt the German general principles for system establishment, Then the five-compilation system of the German Civil Code must be fully adopted. Liang Huixing: "Three current ideas on the compilation of the Civil Code", published in "Chinese and Foreign Laws" Issue 1, 2001, my country's Civil Code system should not be innovative, but should be completely inherited. The civil code system abroad, especially in Germany, does not require any changes. The author disagrees with this.
First of all, the German Civil Code, which is the crystallization of the Pandekton School, certainly has many advantages such as precise and clear concepts, concise and clear terminology, and a rigorous and complete system. Therefore, despite a hundred years of social changes, it is still worthy of being a great code. Excellent civil code. However, the German Civil Code is a product of a hundred years ago. Over the past 100 years, the entire world has undergone tremendous changes. Economic life has become highly complex and diversified, and science and technology have developed rapidly. Therefore, as the basic law of economic life, the system and content of civil law should keep pace with the times. Times have changed, and changes are appropriate. "The wise change with the times, and the knowledgeable change with the times." The formulation of a Chinese civil code in the 21st century must meet China's actual political, economic, cultural and other needs. For example, when the German Civil Code was formulated, personality rights were still in their infancy. Most scholars did not even know what personality rights were, let alone stipulating them in the Civil Code. Of course, legislators could ignore them. However, with the development of the human rights movement after World War II, in modern society, personality rights have become an extremely important civil rights system in parallel with property rights. Considering that our country has long had a phenomenon of not respecting people and not treating people as human beings. , as well as the people’s strong demand for respect for personality rights in real life and other factors, we must take seriously the status of the personality rights system in the civil code system. Even in Germany, scholars have begun to reflect on its civil code. For example, Professor Medicus, a famous German civil law scholar, believes that the civil code "is too simple in regulating natural persons and therefore does not involve some important personality rights." [Germany] Dieter Medikus: "General Introduction to German Civil Law", translated by Shao Jiandong, Law Press, 2000 edition, page 24. It can be said that establishing a comprehensive, complete and independent personality rights system in our country's civil code is a practical need for our nation, which has suffered from thousands of years of feudal autocracy! How to integrate the personality rights system into the civil code organically and harmoniously is the opportunity given to Chinese civil law scholars in the new era. If the German Civil Code does not stipulate an independent system of personality rights as an excuse, and the actual needs are ignored, and the system of personality rights is simply ignored in the Civil Code with a few clauses of the civil subject system or tort law, this will Not only are they cutting their feet to fit the shoes, but they are giving up the great opportunities and sacred responsibilities that the times have given contemporary Chinese civil law scholars!
Secondly, German civil law itself is not a rigid and static system, but an open and developing system. Over the past 100 years, German civil law has been continuously enriched, developed and improved. Germany mainly supplements, amends and develops the civil code through three channels to adapt it to the requirements of social development: First, it formulates separate laws in addition to the code. For example, in order to adjust the hazard liability issues that have emerged in large numbers with the development of science and technology, Germany has successively promulgated a large number of separate laws such as the Aviation Law, the Road Traffic Law, and the Federal Water Conservancy Law in addition to the Civil Code; Qiu Congzhi: Civil Law Research" (1), China Renmin University Press, 2002 edition, pp. 250-254. The second is to amend and supplement the Civil Code through court precedents. For example, when the German Civil Code was formulated, in order to effectively protect individual freedom and prevent perpetrators from being easily offended, the scope of protection of tort law was strictly limited by Articles 823 and 826. However, this limitation has caused some new torts that have emerged with the development of society (such as negligent misrepresentation, damage caused by product defects) to be unable to be adjusted by tort law, so that liability for contractual negligence and additional protection clauses have to be created. There are many theories such as three-person contract, implied information provision contract, and transaction security obligation. The courts use these theories in the form of precedents to change, supplement, develop, and even correct or amend the Civil Code. The third is to amend the Civil Code. In order to adapt to the unification of EU civil laws, Germany has made some corresponding changes to its own laws, the most obvious of which is the "German Obligation Law Modernization Act" that was implemented on January 1, 2002. The direct motivation for the introduction of this law is the EU Directive 1999/?44 on the sale of consumer goods. German scholar Professor Wen Dehao said that the Modernization of Obligation Law is the most profound change since the German Civil Code came into effect in 1900. It has shaken the pillars of the dogmatic theory of German civil law and shaken those who most directly inherited Roman law. teachings.
[Germany] Christiane Wendehao: "The New Obligation Law of the German Federal Republic of Germany", in "German Obligation Law Modernization Act", translated by Shao Jiandong et al., China University of Political Science and Law Press, 2002 edition, pp. 1-2 Page. All these show that German civil law itself is constantly enriched, developed and improved, rather than rigid and static.
Thirdly, the trend of economic globalization is deepening day by day, which has led to a trend of integration between various legal systems. This is mainly reflected in the fact that under the conditions of increasing economic globalization, contract law as the unique rules for transactions and rules related to insurance, bills, etc. are becoming increasingly internationalized. Anglo-American law is influenced by civil law and increasingly focuses on the formulation of statutory law. The civil and commercial laws of civil law countries are also deeply influenced by Anglo-American law. This is mainly reflected in: the formulation of trust law, the introduction of product liability in tort law, and medical negligence liability for anticipated breach of contract. and liability for fundamental breach of contract, etc. In addition, efforts have been made to integrate civil law with common law through some international conventions. For example, the 1980 United Nations Convention on Contracts for International Sales, the 1994 "General Principles of International Commercial Contracts" formulated by the International Institute for the Unification of Private Law, and the 1985 "Hague Convention on the Law of Trusts" formulated by relevant international organizations. All these phenomena indicate that the integration of the two legal systems is an inevitable trend. Xie Zhesheng: "Special Research on Property Law" (3), Yuanzhao Publishing House, 2002 edition, pp. 19-29. For this reason, when we formulate the Civil Code, we cannot be limited to the experience of Germany, but should widely draw on the experience and achievements of civil legislation in various countries around the world.
To sum up, we believe that the process of formulating the Civil Code should be based on the practice of our country, in line with the idea of ????taking the best and discarding the bad, with an open mind, and widely absorbing and drawing on the civil laws of various countries. Excellent experience, rather than a narrow and blind worship of German law, bound by dogmatism or bookism. Only in this way can we formulate a civil code that is in line with China's national conditions, reflects the needs of the times, and is oriented to the 21st century. Only in this way can we truly improve the level of civil law teaching and research in our country and make our due contribution to the development of world law!
(2) Integration of civil and commercial affairs or separation of civil and commercial affairs
When we build the civil code system, we must solve such a major issue, that is, whether our civil law adopts the integration of civil and commercial affairs. First, is it a three-dimensional system in which civil and commercial affairs are separated? The so-called unification of civil and commercial activities means formulating a civil code and applying it uniformly to various civil and commercial activities, instead of formulating a separate commercial code. The separation of civil and commercial law means that civil law and commercial law must be strictly distinguished, and a separate commercial code must be formulated in addition to the civil code. The system of separation of civil and commercial affairs first originated in France. France formulated the Civil Code in 1804 and promulgated the Commercial Code in 1807, thus creating a precedent for the separation of civil and commercial affairs. At the end of the 19th century and the beginning of the 20th century, quite a few civil law countries adopted the legislative system of separation of civil and commercial affairs in their legislation. However, when Switzerland formulated the Civil Code at the beginning of the 20th century, the Civil Code included the contents of commercial law such as company law and commercial registration law, thus realizing a legislative system that integrated civil and commercial affairs. Xie Huai: "The Essentials of Foreign Civil and Commercial Law", Law Press, 2002 edition, pp. 57-58.
The superiority of the two systems of separation of civil and commercial affairs and integration of civil and commercial affairs has been fiercely debated among civil law scholars from the past to the present. However, we believe that when formulating the Civil Code in our country, we should adopt a legislative style that integrates civil and commercial affairs. The main reasons are as follows:
First of all, as Mr. Xie Huai, the famous civil law scholar in my country, said, the system of separation of civil and commercial affairs is not a purely theoretical issue, but the result of historical evolution. . Xie Huai: "The Essentials of Foreign Civil and Commercial Law", Law Press, 2002 edition, page 56. It is not the product of scientific theoretical research as some scholars in our country believe. Therefore, from the beginning of the separation of civil and commercial systems, there has been no strict distinction between the scope of civil law and commercial law in the theoretical circles. Some scholars either adopt the subject standard, that is, the distinction between businessmen and non-businessmen; or they adopt the object standard, that is, the standard of commercial behavior and civil behavior; or they adopt the double standard of combining subject and object to distinguish the scope of civil law and commercial law. However, these standards cannot systematically clarify the division of labor between civil law and commercial law.
In fact, civil law and commercial law are both legal rules that regulate market economic transaction activities. They are essentially the same and cannot be distinguished in legislation.
Secondly, historically, an important reason why commercial law is independent of civil law is that in the Middle Ages, there was a unique social class of merchants, which required the establishment of special rules to resolve disputes between merchants. However, with the development of the market economy, businessmen as a special class no longer exist. All commercial and civil disputes should be submitted to courts or arbitration institutions for resolution. Therefore, commercial law has lost its independent economic foundation. If commercial law focuses on protecting the interests of businessmen stipulated in the law, it can only divide people into different categories based on specific occupations, which is inconsistent with the principle of equality of personality. With the disappearance of the special interests of businessmen, civil law can not only protect everyone, but also avoid the difficulties in the application of law caused by the separation of civil and commercial affairs in legal relationships where one party is a businessman and the other party is a non-businessman. It should be noted that in modern market economic society, what exists mainly is not the opposition between businessmen and non-businessmen, but the opposition between producers and consumers, employees and employers. Therefore, the significance of the separation of civil and commercial sectors is being greatly weakened. On the contrary, some The importance of special legal fields such as consumer rights protection law and labor law is becoming increasingly prominent, which is also a trend in the development of modern law.
Thirdly, the integration of civil society and business meets the needs of the development of the social commodity economy and reflects the requirements of socialized large-scale production, so it has certain progressive significance. In modern and contemporary times, many countries and regions have begun to implement the unification of civil and commercial laws. Since 1865, the Canadian province of Quebec has stipulated certain commercial contents in its civil code and abandoned the practice of formulating a commercial code in addition to the civil code. In 1881, Switzerland formulated a debt code, which included both civil and commercial regulations. The Netherlands has achieved substantial unification of civil law and commercial law since 1934, stipulating that the provisions of the Commercial Code apply to all persons and apply to all behaviors. In 1942, Italy stipulated the contents of civil law and commercial law in a civil code. Brazil has also begun to reform its private law system according to the Swiss model, thus promoting the integration of civil and commercial sectors. The civil codes promulgated in the past ten years have basically adopted a system that integrates civil and commercial affairs. For example, the first and second parts of the Russian Civil Code promulgated in 1994 and 1996 both unified commercial regulations such as bills and insurance. Civil Code. It can be said that the legislative style of integrating civil and commercial affairs is a general development trend of civil and commercial legislation under the modern market economy.
Fourth, the essence of the integration of civil and commercial affairs is to centralize the common rules and systems applicable to civil life and the entire market in the Civil Code, and to stipulate the rules applicable to local areas or individual markets. , stipulated in various special civil laws. Liang Huixing: "General Theory of Civil Law", Law Press, 1999 edition, page 12. Therefore, the adoption of the integration of civil and commercial law means, first of all, that the Commercial Code will no longer be formulated separately in addition to the Civil Code. To be precise, it will not formulate separate general principles of commercial law, but will combine the traditional general principles of commercial law with commercial subjects, commercial acts, commercial agents, Commercial rights and other contents are included in the corresponding chapters of the Civil Code. To put it bluntly, the adoption of the civil and commercial integration system is not like the Italian Civil Code, which stipulates some special commercial laws in the Civil Code, but recognizes the existence of special commercial laws such as company, maritime, and insurance. Under this model, the provisions of the General Principles of the Civil Code can be uniformly applied to all acts stipulated in the special commercial law, the provisions of civil subjects are applicable to commercial subjects, the provisions of civil legal acts can be applied to commercial acts, and the unified statute of limitations for civil actions is applicable. The provisions of agency can be applied to commercial agencies. This is the main significance of the unification of civil and commercial affairs. After the special commercial law is separately enacted, its relationship with the Civil Code is that of common law and special law. Therefore, in accordance with the principle that special laws take precedence over common law, the special commercial law should be applied first. For example, regarding the issue of legal persons, the Company Law should first be applied. If there are no corresponding provisions in the Company Law to apply, the provisions of the Civil Law on legal persons should be applied. If all special commercial laws are compiled into the Civil Code, the system of the Civil Code will be out of the question.
In addition, while emphasizing the integration of civil and commercial affairs, we should also see the coordination and unification of civil and commercial laws. This is often a difficult problem encountered by countries that adopt the integration of civil and commercial affairs. One of the reasons for scholars who emphasize the separation of civil and commercial affairs. However, in our country, legislation has found a way to coordinate the relationship between civil and commercial law, especially the enactment of the "Contract Law of the People's Republic of China" (hereinafter referred to as the "Contract Law"), which organically combines civil law and commercial law. It provides an example of the integration of civil society and business. The Contract Law adopts three methods to handle the contradiction between civil law and commercial law well: First, in a certain type of contract, it stipulates at the same time the contractual relationships involving so-called businessmen and the contractual relationships involving non-businessmen, and establishes different rule. For example, Chapter 12 "Loan Contract" of the Contract Law clearly stipulates the loan relationship between citizens and the credit relationship in which banks participate. For the former, if there is no agreement to pay interest in the contract or the agreement is unclear, it will be deemed that no interest has been paid; for the latter, if there is no agreement or the agreement is unclear, interest should be paid, and the interest rate shall be based on the upper and lower limits of the loan interest rate stipulated by the People's Bank of China. Sure. Second, in a certain type of contract, only contractual relationships involving so-called merchants are stipulated, while another relationship in which merchants are not involved is ignored, or vice versa. For example, Chapter 21 "Entrustment Contract" of the Contract Law only stipulates commercial entrustment contracts. Third, there is no distinction between civil rules and commercial rules, and uniform adjustments are made using unified rules. If there are exceptions, exceptional provisions will apply, such as provisions on the form of contractual behavior and the obligation to notify defects. Since my country's current legislation has solved the technical problems encountered under the unified civil and commercial system, there is no need to formulate a separate commercial code just because of the particularity of commercial rules.
(3) The relationship between the Civil Code and separate civil laws
The relationship between the Civil Code and separate civil laws is a major problem in the construction of our country's civil code system. On December 22, 2002, my country's first draft civil code - "The People's Republic of China and the Civil Code (Draft)" - was submitted to the Standing Committee of the National People's Congress for review. This draft stipulated eight parts in addition to the general provisions, respectively. They are: legal application of property rights, contracts, personality rights, marriage, adoption, inheritance, tort liability, and foreign-related civil relations. One of the most controversial issues in this legislative system is which individual civil laws should be included in the Civil Code and which ones should not be included. For example, some scholars believe that adoption law should not be included in the Civil Code; others believe that various intellectual property laws, such as copyright and patent laws, should be included in the Civil Code; and others believe that trust law, labor law, etc. etc. should also be stipulated in the Civil Code and made into separate volumes.
It should be noted that the system of the Civil Code is not closed, but open. The current nine-part system of the draft Civil Code is neither perfect nor the end of the Civil Code system. The code system often changes with the development of social economy and culture. If it is really necessary to incorporate some important individual civil laws into the system of the Civil Code due to the needs of the development of social and economic life in the future, then the Civil Code will It is also possible for the system to make breakthroughs. However, we must see that the Civil Code is not an all-encompassing and complex compilation of laws, otherwise the system of the Civil Code will cease to exist and the significance of code compilation will be greatly reduced. A compilation of civil laws that lacks a scientific system is not a civil code. The biggest difference between codification and code compilation is that the former unifies civil legal rules through a scientific and rigorous system, while the latter simply integrates civil legal rules Arrange and combine. The compilation of the Civil Code in no way means that any legal system belonging to the civil aspect should be incorporated into the Civil Code as much as possible. None of the civil codes in the world can accommodate all civil legal systems. There is no all-encompassing and all-encompassing civil code in the world. This requires us to correctly handle the relationship between the Civil Code and separate civil laws.
We believe that when formulating the Chinese Civil Code, in order to correctly handle the relationship between the Civil Code and separate civil laws, we should pay attention to the following four points:
First, the Civil Code is at the forefront of the entire civil legislation system. The Civil Code has a general and basic legislative status. Therefore, the Civil Code must maintain a high degree of stability and make the content of adjustments generally fair. However, this will inevitably require giving up the meticulousness and abandonment required by the ever-changing life relationships themselves. At the cost of handling specific cases fairly, [Germany] Karl Larenz: "General Theory of German Civil Law" (Volume 1), translated by Xie Huai et al., Law Press, 2003 edition, page 34. For this reason, legislators often have the urge to enact separate laws outside the code. However, the relationship between the Civil Code and special civil laws must be properly handled. Only the most basic rules that are universally applicable in social life should be stipulated by the Civil Code, while those highly technical issues, or issues only in specific occupational groups or areas of life, should be regulated by separate civil legislation. It should not be included in the Civil Code. For example, the property law mainly regulates the relationship between people's possession, use, income and disposal of tangible property, which is generally needed by the market economy; while the trust relationship regulated by the trust law is not a universal relationship, but arises under special circumstances. , the rules of the trust law are special rules of the property law, so the property law should be included in the Civil Code, but the trust law should not be included.
Second, the Civil Code should mainly include rules and systems with long-term stability and universal applicability. As the highest form of statutory law, the Civil Code must ensure maximum stability and cannot be frequently revised or abolished. This stability is the basis for the corresponding functions of the Civil Code. Some rules in the Civil Code have even been tested in practice 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, rules such as the basic conditions for the establishment of legal persons in the legal person system have long-term stability and should be stipulated in the Civil Code. However, as for other establishment conditions such as the registered capital of limited liability companies and joint stock companies, they will change with the national economic policies. It changes due to changes in the situation, so it should be stipulated by special civil laws such as the Company Law and the Securities Law.