Jurisprudence Study Of The Natural Person’s Disposing Capacity System

As human law, civil law is also law of right and law of capacity. Through Defining the civil subject and regulating acts-in-the-law, the civil law regulates the social relations, SO the construction of civil legal system and theory system is expanded. The disposing capacity is the ability which a natural man expresses his meaning independently, then certain legal effect comes up. The disposing capacity is ’that he changes the ability from having nothing at all to being available all varieties". As connection of the main system and the behavior of the system, the disposing capacity system is related to every one’s immediate or vital interests of natural man. To such an important system, almost nobody of civil legal theorists show solicitude for whose fundamental theory for a long time. The limited learning research results are focus on comparing concept and analyzing system. Some academics have already discussed one or more theoretical point of the disposing capacity system. There is still no panoramic discussion. At the same time, in the study of legislation enacted in the Civil Code, the degree of importance attached to this system is also inadequate. Therefore, this paper attempts to discuss the systems theory of natural person’s disposing capacity through the jurisprudence perspective.In addition to introduction, this thesis includes three parts, by six components. The main thread of thought is:first to examine the capacity of the general theory to compare with the capacity of a series of closely related concepts, make clear the capacity of the original true face and of its own concept; second to turn back the disposing capacity of the Central and Western origins through the theory and the fog of history to understand the agreement and disagreement between the disposing capacity of natural persons with the Chinese legal traditions; last to reflect on the present system of disposing capacity of natural persons and look forward to its future; then to design the corresponding system design for the Civil Code to make recommendations.From a historical point of view, introduction simple outlines the legal concept of capacity development and evolution of the process. It sums up the study of China’s current status and proposes the research method.Then from the task to be completed, it leads to the center of this paper to clarify the issue. CHAPTERⅠ, on the concept of the disposing capacity of natural persons. The disposing capacity originates from German civil law, which is followed by many different countries and regions.Our country has accepted the concept from Germany, Japan, and Soviet Union. The receiving process led to the current civil law of our country’s " disposing capacity" has a variety of statements:it is sometimes referred to as "capacity for civil conduct", sometimes called "capacity to act"; it is sometimes simply the ability to engage in an unlawful act, and sometimes also include the ability to engage in illegal activities; it is usually a legal concept, but may also be used to explain the specific facts. These different statements reflect the academic community misunderstanding about the concept of the disposing capacity. First, the concept of the disposing capacity is based on rationalism, namely, Legal subject is a rational man. It expresses the parties’ ability to judge to the legal effect; it demonstrates the men’s will of freedom in the conduct; and it express the main trust of the law to people in handling their own right. It is of course the unique concept of civil law. Leaving the concept of private autonomy, the disposing capacity is only skin deep and no practical significance.There are no need to add "civil" before the concept of a puppet in the disposing capacity. Second, the disposing capacity is a legal access to rights and obligations. The act of tort is a fact to take on responsibility, which does not require a capacity to act. Again, the law only requires the common problem, so it only provides natural form of capacity. Thus, the disposing capacity is defined as natural person’s intention of independence, so that their appropriate behavior will have the legal effect. When a person wanted his own natural behavior give rise to certain legal effect, he is bound to have certain of the ability to distinguish the facts, to some extent, also with the physical freedom and physical.CHAPTERⅡ, structure and function of the disposing capacity. There is no single thing, everything is constituted by a variety of factors. The composition of the disposing capacity refers to its’ constituent elements and the arrangement of the elements. It includes the composition and form of substance composition. In essence, the essence of the constituent elements of capacity there is only one-mental capacity. Mental capacity is a natural understanding of the motives and results of human’s actions and decisions. Based on this understanding, a person can be aware of the meaning of his actions. Mental capacity includes the cognitive ability and vision. In addition, the expression and control of which is the proper meaning. Weather a man have the mental capacity is a fact of judgment, which is both a result of mental development and a sign of intellectual maturity. Form constitute of the disposing capacity include two aspects:internal structure and external form. To be specific, there are many internal and external factors, such as intelligence, age, and physical condition. In addition, the natural person’s gender, identity, freedom and property have or continue to be of the constituent elements. By its own properties and the internal elements of its structure decisions, capacity to act has some potential capacity:to achieve autonomy of private law; to protect the rights and interests of the parties and of society; to organize the society.CHAPTERⅢ, the history of the disposing capacity in civil law systems. Only through its presentation on the problem, any one particular theory of civil law can be understood. If people do not know how to ask questions of people at that time to discuss things and do not grasp the specific issues raised in the history of the situation, you can not understand the theory of any kind of civil law. As a legal concept, the disposing capacity had formally appeared in Burgerliches Gesetzbuch (German civil law), but as a natural law thinking, it has long existed in the history of west jurisprudence. As a view of Natural law, there is a rational rule in the nature, especially in the human nature. This rule could provide an objective stand to value the structure of law and politic. The performance of the disposing capacity is one of the rational notion of civil law in essence. In order to understand the essence and history of the disposing capacity regulation in a better way, we would study the development of its history, especially in the Roman law (including Germanic Law and canon law), French Civil Law and Germany Civil Law. Although there was no express statutory provision about the disposing capacity in Roman law, the personality regulation of which contained the substance of the disposing capacity. As a matter of fact, the disposing capacity was implicit among the system of subject of right. The personality regulation of Roman law defined the qualifications of civilian and their disposing capacity, the three elements of civilian qualification is also the impact of the three elements of capacity for civil conduct. In the conditions of capitis deminutio, the civilian of Roman would be deprived his title and some of his disposing capacity in certain area. "The French Law" had set the age as a criterion to judge whether an individual has disposing capacity, which is the first one of modern disposing capacity regulation. The disposing capacity system had been formed officially in "German Civil Law" by the establishment of the legal system of acts-in-the-law. In addition, taking into account the special significance of Russia (former Soviet Union) civil law to our China’s civil law, the author explores the disposing capacity system of Russia specifically.CHAPTER IV, the evolution of disposing capacity system in Chinese law. "The disposing capacity" is an imported concept, whose official birth in the civil law was just more than 100 years ago. It has been introduced to our country less than a hundred years. As a concept of social nature rather than a purely natural product, the theory of the disposing capacity is away from the practice of social life, with a high degree of abstraction. But it is very easy to be accepted by China’s civil law practice, and little or almost no scholars have raised questions about that. The reason is that:the nature and function of the disposing capacity are induced fit our legal tradition. In other word, before it was introduced to our law system as a law concept, there have been similar, functionally equivalent of things. These things decided each person’s position in society, organized social structure and controlled of social order by different rule’s between their behaviors. The aims, standards and methods of the disposing capacity were first established in "Zhou Li", which far-reaching impacted on future generations of feudal society. After the Opium War, ancient China has experienced great change. China civil law nurtured by traditional culture also encountered unprecedented challenges and crises, having to walk the way of a modern (west) legal system. In this vigorous campaign of legal changes, our country had completely transplanted and accepted the Germany theory of the disposing capacity. Since then, we had several times of the drafting of the Civil Code, and finally established a relatively complete legal system of the disposing capacity.CHAPTER V, review of the disposing capacity system in our China. "General principles of the civil law of the people’s republic of china" and its judicial interpretation, the disposing capacity and he capacity of right are parallel under the right place "natural person". The disposing capacity is also in the "civil legal acts" chapter and provides the effectiveness of the behavior of various state of capacity in there. This kind of style arrangement is different in form of German Civil law, but in terms of substance, is indeed completely following Germany legislative intent. However, compared to the German Civil law’s strict style and full content, our civil law’s provision on the disposing capacity is far too simple. The statutes on the disposing capacity of natural persons provided only a very limited content, which really can be described as careless. Moreover, some provisions are not reasonable, leading to the legal system is rarely applied in the judicial practice. The faults include such things:the classification of the disposing capacity is too simple; the declaration of t the disposing capacity is very rigid; concerning the lack of capacity to judge the effectiveness is somewhat arbitrary and lack of capacity of the relief system behavior is too general. Our civil law provides only a few special disposing capacity systems. There are no explanations for the ability to work, marriage capacity, adoption capacity, testamentary capacity, and other special capacity to act. The legislators even without take into account the capacity of the legislation left room for exceptions in "general principles of the civil law"CHAPTERⅥ, design of the disposing capacity systems in our country’s civil law. The ultimate goal of all theory lies into the real. Life is not to the concept, the concept is for life. The purpose of researching the concept and nature, recalling the theoretical roots, combing the systems development is to provide a reference system design to the legislators. How to strike a balance between the traditional and modern, natural law and positive law, transplantation and inheritance, is the key to build the disposing capacity system. Under the guidance of this Legislative Concept, the author generally builds a institutional framework about the he disposing capacity of natural person in order to provide theoretical reference to the legislators.