Rights Capacity Study

Ⅰ.Research methodsCapacity for civil fights is the foundation of the civil law.It will determine the spirit of the Civil Code temperament by the deep perspective of this capacity.In German,the word capacity for civil rights is "Rechtsfaeigkeit".By the term "Recht" and "Faeigkeit" consists of two parts.In the understanding of Chinese,the word can be translated as "the rights and obligations of capacity","legal personality","the owner of right".It seems that not only there are three different interpretations of "Recht",and that "Faeigkeit" decomposed into three means.Clearly,there are no defferences between those words in our culture and traditions.Can we accept these exotics? As the word-building is concemed,"Recht" is used to modify "Faeigkeit",and "Faeigkeit" should be the foundation.When we discuss those words,we often focus on "Recht",but rarely touch on "Faeigkeit".Almost all those discuss ignore the the relation between "Recht" and "Faeigkeit".The topic of this paper is capacity for civil rights,and the author tries to seek the true understanding of the law on the foundation of Westem culture,in particular the "private law".At the same time,the maximum has been through since the end of the Qing dynasty,some of the key terms used law history,in terms behind to conduct a deeper dialogue.Based on this,this paper is in the dimension of the philosophy,a mixture of historical and comparative research methods.Ⅱ.Innovation of theoryThe theory innovation of this thesis as follow:first,the innovation of perspectives. From the relationship of legal relationship and subject,this thesis defines that the foundation of the law is the subject.The second is the innovation of the philosophy.The second part of this thesis traces the west cultures and concludes that the subject that is the foundation of the world is the positive capacity of beyond.Hence,the subject,the person and the capacity obtain the uniform meaning.The third is the ethics analyses of the capacity of civil rights.Chapter 3 discusses the start of the law and distinguishes the person and the man.This thesis finds that person is the theoretical foundation of the law and holds that the capacity of civil rights is perpetual and relates to ego,so the law shows the ethics order to the person.The fourth is the comparison of the history.In the discussion of the capacity of civil rights,this thesis analyzes the changes from the Hobbes' natural law to the Hegel'rational law,and traces the concepts of the natural person from the Qing dynasty.Currently,the scholars define the person as the natural person.But,in fact,the natural person should be construed as the person.Then,this thesis studies the meaning of the start of the capacity of civil rights and defines the capacity of civil rights is the start of positive person not the start of the negative person.Based on that,this thesis put forwards that the start should be divided into two aspects:the positive person starts at born;the negative person starts at zygotes.This thesis analyzes the legal meaning of death and put forwards that legal relationship should be changed in the confronting the negative person to respect the negative person which can not have any impact to the world in corresponding legal relationship theories.The fifth is to discuss the body theory in the contract theory.Based on Rousseau' social contract,this thesis discusses the Fiktionstheorie and Theorie Der Realen Verbandsperson from the view of private and public law,and holds that Fiktionstheorie denies the organization' person to defend the ethics person in the private law' scope.The Theorie Der Realen Verbandsperson ascertains that the organization has the ethics person to procure the recognition of nation in the perspective of public law.So,this thesis changes "organization entity" to "technical person esse" and insists that the theory of legal person in China should be "organization entity" and adopts the technical person esse to establish legal person system.The sixth is that from the distinguishing of positive and negative person,this thesis reevaluates the capacity of civil rights of German Civil Code,and points out that the lack of capacity of civil rights is because of the construction of the negative person relationship.Finally,this thesis holds that the civil law of China receives but not accepts the concepts of the capacity of civil rights.Ⅲ.AbstractIn addition to a brief introduction,this paper is composed of seven parts.The main thread is the subject philosophy of the implementation of the spirit of the capacity of rights study from start to finish.From the system of the legal relations as a framework before they draw the conclusion that the subject is the true origin of civil law.On this basis,the author point out that the subject is a kind of ability,and discuss this ability ethically. Carding based on such moral significance of the West and China natural understanding of the person.This paper also discussed the real beginning and end of the capacity for civil rights and re-analysis of the main spirit of legal theory about juridical person.At last,the auther evaluated of the BGB under the guidance of the spirit of the subject philosophy,and the theories of the capacity for civil rights in China.ChapterⅠprimarily discusses the relationship between jural relation and life relation. Generally speaking,the jural relation is the basis and abstraction of life relation.However, since "what is life relation" is still a hardly touched question in the civil law field,jural relation is in obscurity.This thesis is built on Husserl's Phenomenology and his enquiry to the life-world,through which to find the originality of life-world"subject".Moreover,it is subject that basically upholds the structure of jural relation.Furthermore,by analyzing the Classical theory of Karl Marx—economic base determines the superstructure,it is held that the Philosophy of Marx also advocates the"subjective spirit",which is intrinsically linked with Marxism and plays a key role in the west.ChapterⅡtraces the connotation of subject in the Westem culture from the angle of philosophy.By inquiring into the history from ancient Greece to the modern times,this thesis is of the opinion that "subject",as the world basis,develops from the concept of transcendental substance in the ancient Greek civilization and Hebrew civilization.In modern times,transcendental concepts have been replaced by Cogito,which becomes the subject of the world.However,Cogito,being self-consciousness itself,is not a motionless concept but a dynamic thinking activity.It possesses the capability to transcend itself to achieve object.Therefore,Cogito,as the world basis,is just a kind of dynamic legislative capacity,which cannot exist transcendentally.In a word,"subject" is an absolutely dynamic capacity of regulation that transcends itself.This capacity is "person".ChapterⅢdiscusses the Capacity for civil right of a person.I think thatthe real starting point of the law,through the liquidation of which,is not the biological but the personal meaning of a man.At the starting point,what been show is the ethics meaning. The fact that every individual person owns the person is not because the seeing or feeling getting from the biological fact,which is just a completely negative relationship,and,it is to say,just a pure will of simply selfconscience,abstracting away all the content.By all appearances,we as a person in the biology item should not only recognize the capacity of abstract of ourselves but also respect the exactly capacity of other person.For the lacking of any content,and of any practice,there is no manifest yet,and just a imperative on ethic emotion.The person as a free and individual will,is merely relative to itself.That is,the person here is just a empty thought without any content,so,it is just a single will of pure form.Therefore,the order of the law is "be a person,and respect the person of other person".That is the total ethic meaning of person in law(Capacity for Rights).chapterⅣmainly studied natural personality.At first,it is concluded that there are many differences between "natural person" and "Citizen" of Roman law.So we cannot follow the model of Roman law to understand the meaning of natural person baptized by natural law.To exactly understand the conception of natural personality,it is the only way that we begin with preinstall in the state of nature.After the conversion from natural conditions to Civil Society,the natural person we talking about is not the person in the state of nature,nor the Citizen in Roman law,but the Citizen in Civil Society under national situation changed from natural law to rational law.Moreover,this chapter also examined the history of ideas of natural person since the Late Years of Qing Dynasty.It is considered that the evolution of natural person in China experienced three stages:1.From the Late Years of Qing Dynasty to the Period of the Republic of China.Natural person as a translated term was continued to use.The understanding of natural person did not penetrate further into deep layer,only remained in surface layer which is "natural rights" similar to political slogan.But in the separation of public law and private law circumstances,it is agreed that natural person is the subject in private law.After the foundation of New China,natural person as the subject of private law was replaced by Citizen,owning to the former Soviet Union' influences,denying the distinctions between public law and private law.In the third drafting of the People's Republic of China Civil Code,the connection between natural person and citizen was discussed once again. General Principles of the Civil Law as a verdict,in fact,it acts as a guide for citizen to measure Natural person.In 1999,Contract law had not fundamentally corrected concept, but only amended the extension of application.In the academic circles,whether in the late years of Qing Dynasty or after New China founded,natural person's essentiality are all based on human body,namely,person's natural attributes.Ultimately,natural person's "nature" is not the instinct naturality possessed by human being,but personalistic attributes,as "human being" changed into person,person has broken away from the control of natural law,and can make free decision.ChapterⅤdiscusses the start and the termination of the capacity for civil rights.This thesis deals with the meaning of the "start" for the first time,defining it as the relationship between the person and the physical body.Through the assimilation of the person,the physical body becomes the body and has the sacredness of the person.The sacred person is negative,that's to say,the person only relates to ego.The person related to ego is single will or individuality.So,in practice,defining the starting time of an individual is the symbol of defining the person.This thesis holds that an individual starts from pregnancy. But,before birth,the individual only has negative meaning,that's to say,the individual can't enjoy civil rights and assume civil obligations,only the respect to the person being required.Generally speaking,the start,is not the real start of the capacity for civil rights (the person),but the start of the positive person,namely the start of enjoying the civil rights.Based on this,this thesis discusses the protection of the pregnant.In the analysis of termination of capacity for civil rights,this thesis also holds that death doesn't terminate the person but the negative person,namely the capacity of enjoying the civil rights and assuming the obligations,for person is eternal.That needs us to comprehend the legal relationship,which is the obligation relationship of respecting person.Furthermore,this thesis deals with the protection about the person of the dead.ChapterⅥdissertates legal person's capacity for rights.It is mainly established in the spirit of subject philosophy,and from the tradition of Rousseau's theory of social contract and through natural person's ethical significance,it discusses the basis that the organization becomes person.Firstly,that the paper acknowledges that French Civil Code denies the existence of legal person is totally based upon subject spirit of liberalism.In fact,Savigny followed this tradition,while for the need of application,he admitted the organization's existence indeed in real life,but have technical person only.From the point of public law and the perspective of dinging person esse of national ethic,Gierke acknowledged that organization has ethical person.All of these discussions had went beyond the field of legal positivism,and based on ideas of political philosophy.The paper makes over the theory of "organization entity" and argues that from the tradition of contract theory,this should be "technical person esse".As such,the paper considers that our nation's General Principles of The Civil Law seems like technical person esse,but actually it is dramatically different,what it really lacks is the comprehension on ethic person which behind it.On this basis,the paper puts forward suggestions to reconstructing our nation's organization theory.ChapterⅦis the conclusion of the paper.This chapter reflected upon the concept of capacity for rights,starting with the comprehension on the BGB and our nation's academic community.In the BGB,the real cause to the loss of BGB's ethic is not as what some scholars claim,who think the capacity for rights and the person is the same concept, the use of the concept of capacity for rights leads the BGB lost its ethical significance and therefore setuping of the general person rights is impossible,but the structure of legal relationship,which support the formal logos of law.Through the use of the structure of legal relationship,the capacity for fights display its positive sense only,while the negative person,which as the foundation of ethic,is discarded by legal relationship.Therefore the BGB lost its ethical significance.Through the reflection on the concept of capacity for rights in our nation,the paper firstly points out what types of comprehension on capacity for rights exist in our nation,then explains the causes of these comprehension,later discerns and corrects the translation to "capacity for rights" itself,the comprehension on "right standard",the distinguish between "general capacity for rights and special capacity for rights",eomprehension on "the creation of concept of capacity for civil rights"ete. Ultimately,the capacity for rights is not accepted to us all along.