Legislative system of the Civil Code
Legislative system of the Civil Code ? I would like to talk about the modernization of China, China and France, from two perspectives, a legislative system of the Civil Code, a judgment of the Civil Code, of modernization standards and conditions. So, here is to use the concept of the civil law in the formal sense, that is the form of the significance of the Civil Code. The first is the modernization of the Civil Code, legislative style, and this is the judgment of the Civil Law modern standards. Civil law advocates Code Act, a tradition that began in Roman law. Code Civil Code has a pattern or template choice and civil law countries, especially since with a comprehensive civil code - the French Civil Code, since the country's Civil Code seems to encounter this problem, the Debate also began. The original German Civil Code was enacted so the Japanese Civil Code. In the end do not need to formulate a unified civil code. From the situation of national debates, the first encounter is not to take what template or pattern, a good template which one is better, but in the end had not been enacted Civil Code. German Civil Code was enacted, the debate between the pedicle Fort and Savigny is not in Germany to develop a unified civil code, the pedicle Fort advocated the development of the Civil Code, and highly recommended by the French Civil Code, while Savigny opposed the enactment of the Civil Code, stressed that private law is a reflection of national consciousness and national spirit, can not be solidified above mechanical France; New York Civil Code was enacted, Rumsfeld, and Kendrick also triggered a similar debate. Of course Savigny not opposed to the Codification, his main emphasis on the German does not have the drafting and formulation of the conditions of the Unification of Private Code, jurists still not able to bear heavy historical responsibility. The Japanese Civil Code was enacted debates, but the focus is mainly the timing of the Code, and the resulting extension to send with the purposes of faction struggle, of course, the root is a result of the Codex style and content of the different views, especially when it comes to relatives and inheritance laws in part. 1990s, many countries have revised or Making Civil Code also encountered a model selection problem, like the Dutch Civil Code, the Russian Civil Code, the Vietnamese Civil Code. We are now the situation is somewhat similar to the above-mentioned controversy, Professor Xu Guodong called it the Civil Code in the history of the world's fourth largest controversy. The first problem is also encountered in the controversy had not been enacted Civil Code. Gives the impression that if this issue has been resolved, scholars have reached consensus, the debate now just take what model is Romanesque or Pandekten of style, it is not true, at least from Professor Liang Huixing disclosed point of view, some scholars have advocated a loose or confederal, in my opinion is not in favor of the development of the Civil Code, against the Codification, at best, is a compendium of laws rather than codification. Civil Code, the codification of style. Professor Liang Huixing three ideas sum up the current formulation of the Civil Code, the main struggle of idealism and realism, Professor Xu Guodong is summarized as the In fact, manifested from the paper of Professor Xu Guodong, and Professor Liang Huixing point of view, the differences between the two is not so serious in this regard, there are already a number of scholars have pointed out to the paper (see Zhang Gu, Xue Jun, Xie Hongfei etc.), I totally agree with the views of these scholars. But I want to highlight two points: first, to some extent exaggerated some of the differences between the two has its meaning, so the real 'flag towel, let us in the future civil code can really become a human rights declaration; through this discussion, let us produce a consensus: civil law has a Code template has its shortcomings defects, such deficiencies and defects are based on the time of the legislative background, so, on the one hand, we can not hope for the future of the Civil Code is perfect, on the other hand, we should indeed be innovative, not necessarily like Xu Guodong Professor looking forward to it, the spirit of our nation, reflecting the characteristics of our culture, but also conform to world trends, and other civil law, cultural dialogue and exchanges, and to do this style on innovation is impossible. We are not creating a new style to the world that we have the ability to innovate, on the contrary, the style of innovation is determined by the content and substance, innovative style is can not load the new content and ideas. But the innovative style for the contents of the Code is undoubtedly the problem of the second style is designed to be the most reasonable, most scientific, most people culture, the content is stale, conservative,New Balance Sneakers, obscure, backward and even anti-humanistic , then I become old wine in new bottles. Modernization is a historical concept of judgment, is relative, the French Civil Code at the time of its birth is the most perfect, most modern private Codex, the German Civil Code at the time of its birth is the most perfect and most modern private Codex, although two by style vary hugely, but can be regarded as the legislation was in line with modern standards. Of course, they are also the creators of a new style. So, I think, judge modern standards of our civil law, the substance of the Code, a Code style design, both to take into account, but what more important to be clear grasp of. In particular, to avoid the phenomenon of the new wine in old bottles. Of course, as long as the content requirements well, how to design style, the chapter how to arrange it does not matter point of view is very undesirable, but also the need to prevent. In 1993,ralph lauren polo, I wrote a paper entitled In that article, I have some ideas for our future Civil Code Compilation Style The main idea is: the compilation of ideas on the German Civil Code as a template, combined with our experience of the civil legislation and civil law theoretical results and the actual situation of China, and taking into account the continuity of the relatives; inheritance. The idea was: first, the overall style of design ideas should be German, Pandekten, but should be developed; Second, intellectual property should be a separate Code, no intellectual property rights in the 19th century, the private codes a place like this because of the science, technology, literature has not yet been attached to now the situation is quite different; Third, the law of obligations system should not be disrupted, and need to be corresponding with the real right wears, so the infringement should not be a separate Code, the contract law not need a separate compilation, or Obligations seem too difficult to see, lack of coordination; Fourth, relatives and inheritance are still into the Code;, personality rights should have a separate compilation, but a taking into account the General Principles of natural persons mainly moral rights is to write less, the contents of two separate Part, it is difficult to co-ordination with other compiled, it had wronged it in the first compilation. Now look, this style most of the structure and content with Professor Liang Professor, Professor Wang Liming proposition is close, but there are difference. But today, some of my ideas change, despite the broad principles have not changed. I would like to change in such a purely academic point of view is normal for a scholar, such as including the timing of the judgment of the Civil Code to develop, are of the view with the original than there is a change, not had as optimistic, more pragmatic, more cautious. Conditions need to rely on the modernization of China, China and France, of the Civil Code was ripe for the formulation of the problem. Despite the Making Civil Code is almost one-sided voice, but the Civil Code of the formulation of the timing is ripe, it seems that discussion not by much, not many people to express their views, and more people just think that the development of the third wave of the Civil Code . Therefore,Ralph Lauren, we also need good advice, to catch up with the times as soon as possible to develop the Civil Code. In my view, the Civil Code should not be introduced in the short term. At least 20 years of time to prepare. Civil law for this source of all phenomena, the Civil Code, after the constitution of a country's most important code of laws, a system of reasonable, content, language, perfect the Civil Code, Civil Code of the good one, depends on many factors, including the degree of political democracy, market-oriented economic wisdom of the open degree of, including the level of development of the theory of civil law, civil law scholars to national spirit, historical factors, the degree of perception of the local resources. Can be assumed that the original (1814) Savigny strongly opposed, while the by pedicle Fort idea as soon as possible to engage in out of the German Civil Code, rather than to the 1900 enactment of the German Civil Code, the German Civil Code today history of status? In my opinion, a country to produce a modern private Codex required dependent on the condition is more stringent than the formulation of any other codes, the requirements are many, especially reflected in the following aspects: Political conditions. Excellent Civil Code, most of the period of social change in a country or nation, relative to the past of this country or nation, it is the liberal period in the political, the deeper the degree of democratization of the political, whether it is classical democracy or modern democracy or modern democracy. In particular, the performance of unprecedented respect for civil rights, the relationship between political society and civil society to become more rational, look at the French Civil Code, Civil Code of Germany, the Japanese Civil Code as well as contemporary Russian Civil Code, the Vietnam Civil Code, etc., nothing so. China since the reform and opening up of the late 1970s, and gradually abandon the politics of the past, especially during the Cultural Revolution against humanity, to give up the slogan of the dictatorship of the proletariat, and to restore the concept of human rights and civil rights, promote respect for human beings, the progress is obvious. However, it should be recognized that human rights and civil rights did not become the core of the national life and social affairs, governing ideas still remained relatively strong Governing Thought of the degree of democratization of politics has not yet reached sufficient to produce the conditions of private codes in line with the trend of the 21st century. Economic conditions. Civil law to regulate the two major social relations as personal relations, property relations. In my opinion, the economic conditions of modern private codes to produce the dependent must be a market contract, the democratization of the economy,New Balance 420, the privatization of wealth, it will be impossible with modern private Codex. China's current ownership form, the economic system and the production of off status from these three conditions there is a big gap. Wisdom in terms of conditions. The wisdom of the people I am talking about here is roughly equivalent to the concept of national quality. Not to mention, the illiteracy rate is too high, among the intellectuals, city people, the concept of private rights, the social consciousness of the public are not yet ripe for the accumulation of culture and atmosphere of civil law not seem to be too thin, there is no formation of the private Codex cultural soil. China and France theoretical preparation in terms of conditions. The legislative level, from the experience of history, the Civil Code of the formulation of the jurists, especially the matter of the civil jurist. The formation of relatively mature theory of civil law and civil law scientist team is also to produce an indispensable condition of the modern Civil Code. The current situation, the conditions in this regard is not fully equipped, including a discussion of the Civil Code is not deep enough, even though we have over 1000 people to eat this bowl of rice of the Civil Code. Engage in all aspects of the conditions are not ripe conditions under the Civil Code, the results can only come up with all aspects of social interests, thinking of a compromise thing, the Civil Code and its better. The formulation of the Civil Code may be the only opportunity our nation can contribute to the legal civilization to the world, we must seize this opportunity should be made cautiously until this opportunity. Its quick success, it is better to Accumulate. I hold the view is based on the treasure and cherish the Civil Code, by no means negative or pessimistic. Must be added to the above view is: First, I am not opposed by the scholars, including the drafting of the Civil Code by the legislature, on the contrary, I strongly support doing so, to do so in the formulation of the timing of the Civil Code to create a mature conditions, particularly by scholars draft and draft legislation to expand the wide-ranging discussion, which will undoubtedly contribute to the improvement of the draft, and contribute to the achievement legislative conditions; Secondly, I said to wait another 20 years or so, is neither a pessimistic estimates, is not overly optimistic estimates, Imagine our political and social transition from anti-humanity to tend to the humane society is not only used for about 20 years? Relative to the past system, our society is it not have taken place turned upside down? 20 years, I firmly believe that when the opportunity of the Civil Code. Peking University School of Law · Liu Kaixiang
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