Study On The Legislative Construction Of Domestic Relation Law Volume Based On The Civil Code In China

This paper can be divided into2parts with a total of10chapters. The “GeneralView” part from Chapter1to Chapter3explores penetratingly the legislative reasonsof Civil Code to discuss whether the Law of Domestic Relation should be classified toCivil Law as well as the legal status, name and the legislative construction of thesystem architecture of Domestic Relation Law Volume based on the assumption ofthis new classification, which are the fundamental issues in the building of the legalsystem. Both for the theory and legislative practice of Civil Law, this newclassification is a necessary selection for the development of Civil Law. The“Sub-arguments” part from Chapter4to Chapter10refers to the specific design of thesystem on the perspective of system, that is: Firstly, to further improve the existinglegal system and strengthen the weak links such as the marriage legal system, coupleslegal system, divorce legal system, parent-child legal system; Secondly, tocomplement the necessary legal system to fill the legislative gaps, especially forgeneral clauses of relatives system, guardianship legal system and maintenance legalsystem.To do an in-depth analysis on these issues, the general idea should be changedfrom "extensive type" to "fine type". So, a complete legal system should beconstructed. The old declarative and programmatic provisions of legislative conceptshave led to a large number of legislative gaps that there are too many problems withno corresponding legal systems in reality. Obviously, this kind of legislative conceptsis no longer appropriate.The Volume of Domestic Relation Law should be classified to the Civil Code.Both of the Romanesque Civil Code and the German Civil Code have an inherentpremise that Law of Domestic Relation belongs to Private Law and it is an important and organic part of the Civil Law. However, the former Soviet Union had changed thisintrinsic meaning of the law on philosophy and legislation. The former Soviet Uniondid not recognize the existence of private law. The Civil Law, as a department of theSoviet socialist law, is the general term of legal norms of property relations and thenon-personal property relations related (or not related) to property relations appearedwith the form of commodity money and adjusted according to the principle of equality.In this way, the former Soviet Union stripped the Law of Domestic Relation out of theCivil Law. Such approach fundamentally changed the relationship between Civil Lawand Law of Domestic Relation, so that the Law of Domestic Relation turns to aDepartment Law parallel to the Civil Law. The return of Law of Domestic Relation toCivil Law and its independent have become a consensus in Chinese academia, but theviews on what classification should be adopted (i.e., the status of Law of DomesticRelation in Civil Law in China) are still diverse. The author believes that the Law ofDomestic Relation should be independently codified in the Civil Law and should beimmediately flowed the Personality Right Law. From this sense, the General Rule ofthe Civil Law has created the conditions for the paratactic and independent legislationmode of the original Marriage Law and Civil Law, and it also marks the fundamentalreunification of Law of Domestic Relation towards Civil Code.The name of the Law of Domestic Relation should be taken after it return to theCivil Code. For the laws and rogation which adjust the marriage and family relationsor domestic relations, how many names they have when in academic research and reallife? In the history of China, they have many names including Family Statute,Marriage Statute, Marriage and Family Statute, Family and Marriage Statute and soon; From the international perspective, they have many names including MarriageLaw, Family Law, Marriage and Family Law, Law of Domestic Relation and so on.The name of Marriage Law was actually beyond the scope of marriage and familyrelations but also includes other kinships. The rights and obligations between relatives,which are beyond the scope of marriage and family relations, may catch in anawkward position in theory and judicial practice. The concept and category ofrelatives also includes all the marriage and family relations in scientific sense, but a scientific concept of marriage and family is impossible to include all kinship.Therefore, the author agrees with the approach that the name of Marriage Law shouldbe changed to Law of Domestic Relation or Category of Domestic Relation in newlegislation of the Civil Code.Status and specific location of Volume of Domestic Relation Law in the CivilLaw The Law of Domestic Relation adjusts the personal relations and propertyrelations and the later is based on the former. Such property relationship based onpersonal relationship is different from the property relations between general subjects,which always has distinct ethicality and essentially identity and greatly impacted byemotional factors, so it is inapplicable to general property trading rules. The importantrole of moral norm in the field of Law of Domestic Relation has made it significantlydifferent from the component of other Civil Laws on the legal relationship adjustmentmeans. Therefore, the Law of Domestic Relation can not be absorbed by any otherlaws in the Civil Law and can not be covered in the general rules and systematicprovisions. As a part of the Civil Law, the volume of Domestic Relation Law shouldbe independent relatively so that the volume of Domestic Relation Law only can becodified independently in the Civil Law. The independent Law of Domestic Relationshould be placed in sub-rules and its specific location should be arranged after thePersonality Right Law and before the Law of Property.The value orientation of the legislative construction of the volume of DomesticRelation Law system The General Principles of Civil Law was promulgated in1986with the mission of protecting the rights of individuals, and the purpose is that tolook squarely at the existence of social individuals by legal forms. Meanwhile, in thedispute of basis of law, Mr. Zhang Wenxian and some scholars advocated therights-based that the individual rights were well demonstrated. Make individuals freefrom the group and turn to the beneficiaries of rights and holders of obligations. Thevalue of individuals will be further affirmed with the development of market-oriented,thus the foundation of value orientation of advocating and protecting the individualrights has been laid for the enactment of specific Law of Domestic Relation. And thisis not contradictory with the protection of marriage and family relations. The basic principles of the legislative construction of the volume of DomesticRelation Law The Law of Domestic Relation rules are mostly forcible norms, becausethe relatives, marriage and family largely relate to the interests of the state and society,the public order and good morals and public interests, as well as the protection ofinterests of women, children, and the elderly and other vulnerable groups. Therefore,the state must intervene effectively to narrow the free options of the parties. Becausethe legislative purpose of the current Marriage and Family Law is to protect themarriage and family, the marriage and family protection is still an important missionof the Marriage and Family Law of each country at present. The basic principles ofCivil Law and Law of Domestic Relation are different and consistent. The consistencyis showed not only in substantial content, but also in the formal content. Thesubstantial consistency refers to that they are consistent in internal concept, value andbasis. The formal consistency is the similarity observed from the form of the rules. Ifthis consistency only can be recognized and ignore the difference between them, theconclusion that there is no need to rule the basic principles of Law of DomesticRelation will be reached. So, based on the basic principle, the volume of DomesticRelation Law should be developed as a new system which has the characteristics ofhigh compatibility, consistency, and specificity on contents and forms in accordancewith the Civil Code.The historical mission of the volume of Domestic Relation Law After theMarriage Law innovated in1980, the focus of the marriage and family legislation inChina also began to shift from reform the marriage and family system to theconstruction of stabilize the marriage and family relations and protect and develop themarriage and family system, the mission of it is to construct basic framework for themarriage and family legal system in China. The legislative philosophy today changedgreatly: the guiding ideology has changed from extensive principle to fine norms; thelegislative focus has changed from personal relation to the property relation; theinterest balancing has tilt the attention to the individual interest from common interest;the legislative keynote also has changed from stress to control the development tostress to respect private rights and protect freedom and autonomy rights of citizen; and the pursuit of value has also transited from formal equality to substantive equality. Itis because of the imperfect and incomplete Marriage Law system, the marriage andfamily system law got opportunity to develop toward diversification and multi-layers.The process of more than60years with difficulties has determined the trend of thevolume of Domestic Relation Law: a systematic Law of Domestic Relation shouldbear the new historical destiny of integration, reconstruction, improvement anddevelopment.The structure of the legislative construction of the volume of Domestic RelationLaw of the Civil Code The author believes that the structure should be establishedin accordance with the7provisions of relatives general rules, marriage, spouse(husband and wife), divorce, parent-child (parents and children) and parental rights,guardianship, maintenance.