Research On The Codification Of European Civil Law In The Background Of The Approximation Of European Private Law

The approximation of European Private Law is the most important aspect in the field of law in the integrating process of Europe. In recent years, the most striking field in the development of European law is the approximation of private law. Among which, the most prominent is the codification of the European Civil Code which is initiated and enacted by European Union. From 1990s, to study and draft out a European Civil Code has become the hot issue of the European scholars. These scholars conduct their research in different forms, the purpose of which is to establish the theoretical frame for common European Private Law. Although some problems in the codification of European Civil Law are still in dispute now, the research on the codifacation has great achievements in Contract Law and Tort Law. These achievements provide civilian scholars in the world with precious materials for the study of European Private Law.This dissertation, from the perspective of comparative science law and history of law, attempts to study on the purposes, background, approaches and basic content of the codification of the European Civil Law so as to exhibit the progression of the harmonisation of the European private law and its trend of development. China is engaged in the discussion and enactment of Civil Law, therefore, the fruits of the study of the Codification of the European Civil Law shall be undoubtedly of important references in enacting the Civil Law in China. The dissertation includes the following parts: Chapter One"Introduction": In this part, it states the original purpose for writing the dissertation, the research value and the research scope. After this, the research method and the structure of the dissertation are further introduced.Chapter Two"The Background of the Codification of European Civil Law: Approximation of European Private Law": In this part, it will be analyzed that with the globalization and unification of regional economy, the approximation of Private Law has become a tendency for the development of Private Law. In this thesis, it is considered that the approximation of the European Private Law has its deep economic, political, social and cultural reasons. The ways for the approximation of European Private Law are numerous, but conventions, regulations, directives and other existing approximation methods can't overcome their limitations. And on the other hand, the unification of Conflict Law of the European Union also can't solve the conflicts between Private laws of all the member states of the EU. The codification of European Civil Law is helpful to form unified regulations of Civil Law in the Union so that the common market can operate more efficiently.Chapter Three"The Idea and Method of the Codification of European Civil Law: Discovery of'Ius Commune'": In this part, it is analyzed that the idea of the codification of European Private Law comes from the"ius commune"of the 11th and 12th century in Europe. In this thesis, it is considered that the codification of European Civil Law of 1990s can be regarded as the regression of the idea of"ius commune". The way of the codification of European Civil Law aims at forming the present"European Ius Commune". Today's European Civil Code is to find the traces of"ius commune"in the laws of different European countries to establish the theoretical frame of common European Private Law and at realize the unification of European Private Law. Chapter Four"The Present Situation of the Codification of the European Civil Law: Analysis with Examples": In this part, the present situation of the codification of the European Civil Law will be reviewed and the object of the codification of European Civil Code and the Draft of Possible Structure of European Civil Code are analyzed. According to the conclusion of the study and analysis in this thesis, they have the following characteristics: the limitation of the adjusted scopes, the incompleteness of the structural system. In this thesis, the main areas of Civil Law, i.e. Contract Law, Tort Law, and Property Law are also analyzed to show how they are unified. In the end, the character of European Civil Law is generalized that it has the characteristic of soft law and functions as model law.Chapter Five"The Future of the Codification of the European Civil Law: Problems and Prospects": In this part, the problems and obstacles in the codification of European Civil Law are analyzed, i.e. the necessity of European Civil Code, how to deal with the conflicts between diversity and integrity in culture of member states of the EU. In this thesis, it is considered that from the point of view of prospects, between Common law and Civil Law, historical and actual relation exists and the convergence of these two systems has been a tendency. The codification of European Civil Law should be advanced by the legislators and the cooperation of all the European professional jurists. If the politics is powerful enough and the jurists prepare the way, the unification of the European law can be realized.Chapter Six"The Codification of the European Civil Law to China: Use for Reference": The fruits of the study of the unification of the European Private law therefore shall be of great significance in enacting the civil law in China. In the process of constituting civil law in our country, we should assimilate the most developed legislating idea and methods. The active participation of the civilian scholars and the use of the method of the comparative law are all important factors that can't be ignored. At last, the conclusion of the dissertation: The thesis attempts, in the aspects of the unification of European Private Law, especially in the field of the codification of European Civil Law, to study on the objectives, approaches and basic content of the unification of European private law in order to exhibit the progress and trend of contemporary European Civil Law. Although the codification of European Civil Law also has a lot of great obstacles to overcome, the purpose for studying it is not to foresee whether the codification of European Civil Law can succeed, but to get beneficial inspiration from the problems it face and the achievements it has made. The process of the codification of European Civil Code is one in which all the member states of the Union find"ius commune". China as a country that is transiting towards market-oriented economy has already put the promulgation of its own civil code on the agenda. The achievement of the study on the unification of the European private law is of great significance in enacting the civil code in China. The approximation of law requires that in making the domestic law, the country should rationally and selectively assimilate or transplant the other countries'law or assimilate the common practice of law that has been accepted in the international practice.