On The Dicision Of The Constitution And Civil Law

In the nineteen ninties, the division of the constitution and civil law was paid close attention and thought over by the people who study constitutional law. In August2005, the argument around whether the draft of property law is unconstitutional made this problem become a focus of controversy in the legal profession, and the scholars have disagreement and controversy about this problem at the meetings relevant to constitution and civil law. So far, there are still disagreements about this problem and it has not been made clear in theory.This paper aims to explore the division of the constitution and civil law, sort out the current theoretical controversy and point out a "middle way" of Chinese legal and the social development path. For this purpose, the paper analyzes the status of the study on the relationship between the constitution and civil law in the academic circles in recent years. And then on the premise of the limited meaning of the constitution and civil law and the composition of legal norms, using the comparative method, this paper describes the division of the constitution and civil law from several aspects such as adjustment object, legal status, value and function, effect and rights. The purpose of the division of the constitution and civil law is to discuss the division of legal system of the constitution and civil law and to discuss the dominant logic and theory behind it from the aspect of the divided standard which is a core problem, so we can establish a set of boundary theory system of the constitution and civil law for China in order to response to the contradiction during the social transition period and meet the requirements of the separation of the civil society and the political state of our times.We should distinguish the adjustment object of the constitution and civil law from the boundary standard. In recent years, it is questioned to divide legal department by its adjustment object. Adhere to the adjusted object as rationality dividing standard of legal system, this paper analyses the influential theory of the adjusted object of the constitution and the civil law, comb the theoretical debate of constitution and civil law object, recall their social background, analysis of the advantages and disadvantages and then determine the adjustment object of constitution and the civil law which means to determine the divided standard of the constitution and civil law. In response to the requirements of social transformation which needs the improvement of the constitution and civil law, we think that the constitution should adjust "the constitutional relationship", but not "all the social relationship",and "all the social relationship" can not meet China's social reality that the civil society and political state are preliminary separated. Civil law should adjust "civil relations (Civil Society)",not "the relationship between the equal subjects".The theory of "civil relationship" is more in line with the requirements of the spirit of our age for the development of civil law, it can include the new developments in the area of civil law,and address the adverse of other adjustment object theory. And we also emphasize that the constitution should not regulate the relationship between citizens for the avoidance of the damage to base of rule of law. Based on the above view, we think that the constitution adjusted object and civil law adjusted object should have the following difference:unequal democracy political relations and equal civil relations, the state exercise public power in constitution relationship and exercise private right in civil law relationship, the relationship between citizens and the state and the relation between citizens. And based on these differences we can draw the conclusion:the relationship between constitution and civil law is neither cross, nor inclusive, but mutually paralle.We can draw different conclusion about the legal status of constitution and civil law while we study then from different angle. From the angle of social phenomenon, we think that" the civil law is the basis of the constitution", while "the constitution is the basis of civil law". This article traces back to historical development of constitution and civil law in the France, Germany and China, and we found that democratic constitution is in the former and civil code is late in formulation, but civil law and its order in the stage of generation and development has not been effected by the democratic constitutional order, conversely, the civil law has provided concept, spirit, principle and standard support for the emergence and development of the constitution. From the angle of legal norms, we think that "the constitution is the fundamental law and the supreme law in the legal system". The viewpoint that "civil law is the fundamental law" or"civil law and the Constitution are on an equal footing" is a mistake, and this point has been proved in many aspects. In theory, Kelsen's" legal order" theory, Hart's "the rule of recognition", Dworkin's" principles of law system" has all proved the constitutional supreme legal status. In the power foundation,"Constituent power" established on the people's sovereignty is the basis of the constitution as the fundamental law. In addition, the constitution of the self determination system protects the constitution as the fundamental law and its supreme legal status. This paper expounds the boundary problem of the effectiveness of the constitution on civil law in many aspects. In the aspect of the civil legislation, we think that the Constitution defines the scope and content of legislative power; and controls the civil subject of legislation. The constitution directly bounds to civil law behavior by declaring legislative acts unconstitutional, Control of civil legislation content validity of constitution and the constitution requires that civil rights which has a hook and a complementary relationship with the constitutional rights be reflected, while those do not have relationship with the constitutional rights need not be reflected. But the system of economy, culture and the citizens'benefit right in the constitution do not have direct effect on civil law. From the angle of civil action, we think that the constitution has indirect effect on private action, and also has indirect effect on those for-profit civil behavior which the country and its organs take part in, but has direct effect on the state intervention action, public functional behavior, not regard action and administrative private behavior. From the angle of civil jurisdiction, In this paper, we are against the idea that constitution can directly be used in the private law, we think that the constitution can't be directly used as the judgment basis, but has direct effect on the civil judicial interpretation and the filling of civil legal loophole.At about the value and function division of the constitution and civil law, from distinguishing the function of the confirmation of the rights, we think that the difference between the confirmation of constitutional rights in the constitution and the confirmation of civil rights in civil law causes the other different function. On this basis, this paper affirmed the constitutional function of controlling the power. This paper point out that basic constitutional rights of citizens is initially pointed at the national public power in France and the United State, and in fact, modern constitutional clause of private relationship still adjust the relationship between state and private. The constitution of China has more terms between personal relationships, but these terms are just for personal relationships. In addition we think that modern constitutional clause of private relationship and "the third person effect theory" in the constitution has not changed the natural constitutional function of controlling the power. On analysis of "the third person effect" theory and practice in German constitution, we do not agree with the idea that the constitution has direct function on prevention of the privatization, and we think that "the third person effect theory" is in fact a relationship of "citizen (private), state and citizens (private)",and the constitution has only indirect function on prevention of the privatization whether in the judge's constitutional interpretation in civil litigation, or in the effect of constitution petition verdict on private. Then about the civil law, on this basis, this paper affirmed the direct function of prevention of the privatization. But we do not agree with the idea that civil law has the function of controlling the power, and we think that the limited adjustment object of civil law determines that the civil law can't afford the function of controlling the power. If we greatly expand the function of civil law, we will deform the basic frame of it.About the division of constitutional rights and civil rights, we must oppose practice of some scholars that they differentiate constitutional rights and civil rights from the attributes of the rights, namely from the different elements of the rights. Under this premise, this paper distinguishes the subjects of the constitution and civil law, and puts forward the idea that the constitution should take unitary subject system and civil rights should take two subjects system, and the country is not the subject of constitutional rights, but just a subject of civil law. Then this paper distinguishes the right form of the constitution and the civil law, and.then puts forward the idea that despite the wider range that constitutional rights has, but people seem to have accepted the concept.However, by the comparison of the current constitutional rights and civil rights of our country,we are surprised to find that in fact the range of some constitutional rights is much smaller than the civil rights, in contrast, civil rights include more specific content right than the constitutional rights. And some civil rights can not be found in the constitution. Then this paper distinguishes the function of the right, and then pointed out that constitutional right is the claim of citizen for the state and the constitution constraints the state which is related to political ethics and the status o f the Citizen is higher than the state. Civil right measures on private interest and the distribution rights, and Civil law restraints private. And then this paper distinguishes the of limiting the rights. we think that On constitutional rights, the state should regard the protection as normal, and restriction as special circumstance. So the national restrictions on constitutional rights must be in accordance with the principle of legal reservation, get the mandate from the people at first and follow the principle of proportionality, and limits the constitutional rights to the minimum, or limits the cancellation rights will become a real danger. While the civil rights can have a voluntary way self-limiting, but should be based on the principle of public order and good custom.Behind the theory of the division of the constitution and civil law is the Chinese path choice of legal and social development. The reality of the preliminary separation of China's civil society and political state require that we should face the fact that the constitution and the civil law does not coordinate. Therefore, this paper discusses the theoretical debate of the division of public law and private law. And we think that we can embed a new legal departments in addition to the public law and private law, in which the constitution belongs to the public law, civil law belongs to private law. At the same time this paper traced back to the national history of two major types, and pointed out that capitalist countries in the past appears to have the trends to develop from laissez-faire and sacred private right to public power intervention to market and proper enhancement on private relationship by public law. The former socialist countries in the past appears to have the trends to develop from strict plan and lack of private right to the public law gradually exiting from the domain of private law and using the power of private law to cultivate civil society. Obviously, whether capitalist countries or socialist countries, they all chose "a middle course" in the historical lessons, and in the history of a certain point of intersection, the experience is also significant to china. China is in a social experiment period, and the reality calls of civil society to restrain public power and political ideals of "small government and big society" both claim to constitutional transition and perfect constitutional and civil law. But we will not take "the free market" road, or go back to" the planned economy" road, we should choose an " improved " road. Through the" improved" constitution, which also means constitutional amendment or constitutional interpretation,we can make the constitution transform to a modern democracy constitution which can restrict public power and protect the private rights, but also has the appropriate power to retain the market regulation. At the same time, the civil law also needs further development. In short, there is no problem of who is superior between the construction and civil law in the construction and development of Chinese legal system. We must adhere to the principle of harmonious development of common balance.