The Establishment Of Modern Culture And The Chinese Law Culture Value

The law as a cultural phenomenon should be placed in the cultural horizon no matter for legal culture, or for private law culture which is an important part of the legal culture. The core of culture is the value. The difference of the cultural value in different historical stage of development in human society, not only created the cultural traits of historical stage but also shaped the special character of laws, forming the different legal culture. Law is always given the times during reflecting and embodying the cultural values of the different stages of historical development process, as well as private law. In the modern society, what is the culture value in modern society, what is the modern legal culture value decided by of modern society cultural value, how to understand the value orientation of the culture of private law, how to seize the standard of the value as the important content of the Codification of the Civil Code formulation, and how to give China civil code to modernity. The discussion or explore of these issues constitutes the main content of this paper.The purpose of this paper is trying to walk out of the misunderstanding of research methods in the private law existing only paying attention to the instrumental rationality and ignoring value rationality, paying attention to system, rules of the level of research and less taking the cultural value and spirit philosophical behind this research into account. The paper places the private law in the context of the entire modern culture, modern legal culture, modern private law culture and explores modern cultural value orientation consistent with modern legal culture and modern civil law culture value to establish value basis for our civil law the System.The whole paper is divided into five chapters along the logic thinking from the abstract to the concrete, from culture, legal culture to private law culture and is discussed from the main line of the value of the culture.Chapter1tells mainly about culture and its modern value. discussion on the basis of cultural connotation, characteristic and so on, the paper mainly discusses the modern culture to the value significance of the problem, the purpose of which is to provide the theory and contextual premise that discussion below foreshadowing. About cultural category, there are so many kinds of definition, but from Marx’s practice materialism philosophy method, the culture, refers to human survival and evolution of the special process, methods and results, culture also can be said to be a way of life, as a model of social relationship between people. Culture has social, historical, ethnic, inheritance, openness, selective, creative characteristics. Modern culture is the value significance of the individual for ontology value, to rationality as the important value, modem culture is the culture which unified individual and rationality.Chapter2tells mainly about modern culture and the modern legal culture. This part is the discussion of the relationship between culture and legal culture, and modern culture value orientation act on modern legal spirit and value shaping. Legal culture as a kind of cultural phenomenon, it exists and implicit law phenomenon inside, is a universal and stable collective intention, namely attitude, thinking and ideas, is the human social organizations and cooperation in the arrangement of the concept of order. Legal culture as a general overall cultural value symbol or show system, its inner spirit is the cultural value and significance system required. The spirit of modem law depends on the core of the modem cultural-value-significance which made up of individuals and necessarily rational tension, the law which rational,and formal is an important sign and requirements of legal modernization, the law of modernity and modern cultural value connotation is the combination of individual freedom and universal justice.Chapter3tells the civil culture and the lack of it. In the last two part the basis discussion of cultural, legal culture and its modern value, this part begin to research private law cultural. and then to demonstrate that our traditional society are lack of private law culture in the paper. The division of private law and public law, not only the meaning on the law structure form, but also contains the private domain independent, private right sacred, and the basic spirit of private law autonomy. Private law contains the essence of the modern culture, possesses the legitimacy of interests, rights of basic and exchange of universality attribute. Because of the ideas of natural economy, autocracy and contempt for private interest in traditional China, It may not form private law culture which fit with the demands of modern culture and the value of modern legal culture.Chapter4tells about China modern private law cultural value orientation. This part is concentrated exploration of the China modern civil law culture value orientation. Individual freedom is the root value of Modern private legal culture, justice value is the auxiliary value,the unification of individual freedom and private law justice is the value orientation. Individual freedom is a subjective life that personal unfettered autonomy rights and status, and the private law justice is the value works in civil society,is to resolve social relationship legitimacy and rationality that between individuals and the relationship which made up of the individuals. The value orientation can be analysis from the modern value, the perspective of modern value, modern economic structure, also can be described by the comparison between post-modern legal value and the investigation about the relationship between civil society and other aspects. Individual freedom value in the modern civil law culture is of the specific performance for equality, autonomy (the principle of autonomy of private law)principle, in the commercial of performance for the business principles of freedom; private law justice value in civil law is of performance for the honest credit, public order and good morals rights shall not abuse principle, in the commercial law is the principle of transaction security.Chapter5tells unification of China civil law and establishment of civil law culture value datum.This is the end-result of this article. Because of China’s current law of Codification landmark project is to develop civil code, and primary task of legislation of civil Code is to establish its culture value datum. According to the above conclusions, the culture value orientation of modern private law should become the soul of our Civil Code, the civil code should with the unity of individual freedom and private law justice as culture value datum. Just do this, the civil code just has modernity. Establishing the culture value orientation of modern private law as the culture values datum of enacting civil code for our country, will help to overcome the misplacement of the disadvantages of the value lost and subject misplacement, to embody the principle of the autonomy of private law, to realize the unity and harmony of individual freedom and social justice.