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Idea·Function·Technics: Open Out And Judge Of The Principle Of Autonomy Of The Will

Posted on:2008-10-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y GaoFull Text:PDF
GTID:1116360215953556Subject:Legal theory
Abstract/Summary:PDF Full Text Request
At present the forth civil code in the history of new China is being drafted out, which just meets the end of the 20th century and the start of the 21st century. Maybe for the coincidence of the lucky chance, the metaphor of the century alternation is hard to avoid making the countrymen expect the first-boring of the law. Some want to change the social structure by dint of the law, some want to conform bitty morality, also some want to promote the community change and pay attention to protest the puny colony. The ever experience of lawmaking shows that the compilation of law is hard to disengage the exact understanding of social living condition. The lawmakers need to know the property and function of the private law under the influence of economy, politics and culture and put the people's law which is the important part of private law an exact orientation.The core point of this paper includes:Firstly, the ideology base of the principle of autonomy of the will is the neoteric natural law, the political base is the revolution of bourgeoisie and its law base is French civil law. Secondly, the principle of autonomy of the will is the contradictory of people's freedom of the will and its limitation. The changing life style of different ages causes the principle to have different representation in private law, but the status and function of the basic standard and dominant concept of value never change. Thirdly, the principle of the autonomy of will be carried out by the relationship between the autonomy of will and the control of the country. Fourthly, the legislator should consider the influence of the principle of the autonomy of the will on the private law. And in our country the principle of the autonomy of the will will be made through the legalization of private law.Thirdly, the principle makes the affirmation and restriction to the free doer by different degrees of enforcement through regulation of law. And this also tells the advantages of the balance between free willing of person and control of the country. Fourthly, the law-maker should fully understand the function of leading value that the principle of autonomy of the will gives to the system of the private law and make the comprehensive autonomy of the will come true in civil code and other special private laws and carry out the principle of autonomy of the will through the legalization of the private law.There are several innovations in this paper:Firstly, it for the first time understands embeddedly the purport and function that the principle of autonomy of the will gives to the civil code and the system of the private laws from the point of the combination of the concept of the leading value and the technology of law-making and the validness of statute.Secondly, this paper for the first time analyzes different manners and functions that the compulsory norm of the public law and the compulsory norm and semi-compulsory norm and the arbitrary norm of the private law adjust the actions. Basing on this point, the writer thinks when constituting the future civil code and other special private laws; we should pay attention to collocate the compulsory norm, semi-compulsory norm and the arbitrary norm in reason.Thirdly, from the point of the view of validness structure of legal act, the paper analyzes how to harmonize the tense relationships between the people's freedom of action and the state administration through the technology design of different state of effectiveness to legal act. It deepens the systematic understanding that the private law changes the style of action.Fourthly, through the meaning analysis of the principle of autonomy of the will and its implement of realization, the paper put forward the critical function that the principle of autonomy of the will has to the present monocracy state and elucidate the restriction and critical effect to the public rights of state.There are four parts except the prelude and the tag.The prelude makes demarcation to the basic concepts used in the paper and expounds the important points generally, which is easy for the reader to understand the overall arrangement in a whole. There are two parts in the prelude: the prominent points and research significance of the paper; the research methods and steps.The first chapter: The base and development of the principle of autonomy of the will. In this part the writer discusses the multi meaning of the principle of autonomy of the will and its bases of ideology and politics and law and set forth the general process of how the principle comes into being and develops in the law. Firstly, the writer expounds the different understandings of the principle through the meaning analysis: the principle of autonomy of the will as the ideology of philosophy; the principle of autonomy of the will from the view of demarcation between the public law and the private law; the principle in terms of the international private law and procedural law. Secondly, the writer discusses the base of the methodology. The principle of autonomy of the will is result of the mixed function of neoteric natural law and the revolution of bourgeoisie and the French civil code. It embodies the methodological ground of individualism and gives attention to. Last, the writer expounds the general developing process of the principle of autonomy of the will in positive law.The second chapter: The function of the principle of the autonomy of the will. This part pays more attention to the function that the principle of autonomy of the will influence on the entity modeling and market economy and democracy. First, through the analysis of legal act and meaning expression that makes the principle of autonomy of the will exist; the writer discusses how the principle of autonomy of the will adjusts the actions. Second, the function that the legal act adjusts the people can cultivate and figure the entity.The third chapter: The law norm structure under the principle of the autonomy of the will. This part analyzes how the law-makers deploy the different norms of validness bound to harmonize the tense relationships between the freedom of action and state administration. First, the writer explains the basic function that the validness bound of norms influences on the people's action and the classification of norms according to the strong influence of law. Second, it emphasizes the analysis of the differences between the compulsory norm both in public law and private law. And it points out that only by this way the private law can be done effectively. Third, through the analysis of the compulsory norm, this paper makes a conclusion that it is through the combination of the features of arbitrary norm and semi-compulsory norm to make it more equal. And finally, this paper analyses the arbitrary norm and points out the importance of the principle of the autonomy of the will for the arbitrary norm. Chapter Four is about the legalization of the principle of autonomy of the will. And it points out that the principle of autonomy of the will can be carried out only with the help of legalization and it can make function in the adjustment of human being's behavior. Firstly, this paper will analyze the legalization of the principle of autonomy of the will with the help of the legislation of civil law and other special laws. Secondly, it discusses the legalization of the principle of autonomy of the will in the law of procedure.In civil law and other special private laws, the position of the principle of autonomy of the will as the leading role value and basic standard is unchanged. And this is up to the features of existing environment and its functions. After realizing the importance of the principle of autonomy of the will, it is reasonable to make civil law and other special private laws. And it can be made properly with good skills and designation. Only in this way, those who have realized their own values can make their own purpose of life come into being. And then the personal character's value and the related responsibility can be done in a proper reality.
Keywords/Search Tags:the autonomy of the will, idea, function, technology, civil society, political state, public law, private law
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