Analysis About Legal Obligation Clauses And Normalized Legislation Of Theirs

Based on current legal obligation system, this paper tries to solve the problem of normative design about legal obligation clauses in the current legislative system. That is to say, what specific legislative principles and structure rules should be followed in the rational design process. As a basic method, normative analysis with the core of "form-oriented" is adopted by this paper. Formal rationality and theory of rule by law are the theoretical basis of "form-oriented "path of analysis.This paper is divided into five chapters. The first chapter is introduction. The severe reality is sharp challenge to legislative theory. The key question is how to realize the development and improvement of legal system, that is to say achieve the transformation from the extensive-style legislation to the elaborate-style legislation. The elaborate-style legislation requires the change from abstract, generalization, conflict, dispersion to concreteness, definition, unification, coordination, and realizes the transition from the idea-style legislation to the action-style legislation. Normalization of legislation is the inevitable requirement of rule by law; it is indispensable in the process of legal modernization. Based on the theory of legal formalization, the legal system should have a sound legal form and structure to achieve the legislative goal. Social change determines the necessity of normalization of legislation, and the development and improvement of legal system makes it even more important. Social transformation is the starting point for the improvement of legislation. This chapter analyzes the "technical standpoint" adopted by this paper. The legal structure and technology should be the core of the legislative research. In the traditional legislative theory, the study of legal construction is subject to legal linguistics and logic analysis framework on the whole. This article tries to break through the model of concrete analysis and provide a more general research perspective in order to improve the development of normalization of legislation.In order to achieve this goal, this article takes legal obligation as the research object. Previous studies have demonstrated the relationship between legal right and legal obligation, analyzed the diachronic, logic and systematic research and established the basic frame of theory of legal obligation. Research about legal obligation is on the whole in a weak position because of the influence of rights-based view. This situation limits the empirical research of legal obligation and the development of independent, autonomous theory of legal obligation. This article tries to make up for the shortage.The second chapter makes a detailed analysis to the defects of legal obligation legislation in our country. The contents of the legal obligation clauses come from legal obligation norms. Legal obligation clauses are the text expression from legal obligation norms. With the development and expansion of legal obligation system, legal obligation clauses had evolved into institutional system with gradation, interrelation and complementation. By the empirical analysis on legal obligation clauses, we can understand defects of legal obligation legislation. These defects including plagiarism, expression briefly, moralistic, unbalanceness, inappropriate application about uncertain legal concepts and the general terms, as well as abundance in policy-related and declaratory legal obligation clauses. These deficiencies shall be resolved by legislation.The third chapter explains the basic theory of legal obligation from perspective of legislation. This chapter discusses the definition, types, basic characteristics, the formal characteristics and elements of legal obligation, which lays a theoretical foundation for the fourth chapter and the fifth chapter. The definition of legal obligation in this paper is that it is the mandatory act or non-act of the law has required; its content is restraints or burden. Although there are closely relationship between legal right and legal obligation, legal obligation is still an independent and autonomous style of rules.First, legal obligation has unique organizational system. Legal obligation in this paper is divided into eight categories:basic obligation and normal obligation; legal obligation to act and legal obligation to non-action; personal obligation, group obligation and national obligation; procedural obligation and substantive obligation; property obligation, personal obligation and the obligation with double characters; obligation about the boundary of legal rights and obligation unrelated to legal rights; legal obligation about oneself, legal obligation about another person and legal obligation about others. Different types of legal obligation have particular characteristics; the requirements of legislative design are also not identical.Second, legal obligation as a major type of rules not only has the basic characteristics of the general rule, but also has the unique features different from other kinds of rules. The basic characteristics of legal obligation can be summarized as regularity, integrity, clarity, universality, expressivity, structural feature and enclosed feature. Regularity is expressed by particular language and reflects the legislative intent. Regularity gives priority to legal obligation and provides an authoritative action reason. Integrity includes all components of legal obligation; it is includes both basic components and supplementary elements. There are no holes and blank in complete legal obligation which depends the supplementary elements to supplement. Clarity means definitely and specifically; it has special significance to legal obligation. The specific evaluation standard depends on the degree of legitimacy about definition and specification. Universality comes from consistency of behavior. It is by no means a norm if it is applied to a case only. There is no contradiction between universality and substantive equality. Structural feature refers to the relationship between parts in the whole. The basic structure of legal obligation is behavior requirements, contents of behavior, supplementary components. The complexity about the structure of legal obligation depends on the contents of legal obligation. Enclosed feature refers to the formal sources of legal obligation which the contents of legal obligation come from. Enclosed feature suggests the authority and systematization of legal obligation. Expressivity means the application of linguistic and logic knowledge in legislative theory. Expressivity involves the technical problems about legislative design.Third, The unique formal features of legal obligation include legality, coerciveness, constraint or burden. Legality decides the compulsory legal principles; it is the main feature which is different from other types of obligation. Legality determines the legal obligation can only be prescribed by law, so the primacy issue is establishment or abolishment legal obligation. The intervention about self-regarding behavior mainly includes limited behavior capacity, making the wrong decision and the need for substantive equality. Coerciveness is not equal to force and means not arbitrary. Legal obligation clause is a dead letter without coerciveness. The power to maintain legal obligation can only come from the legal system itself. Constraint means control and bondage, burden means sustainability and undertaking. Constraint or burden is formal expression for the contents of legal obligation. Burden means the degree of objectivity about performance of legal obligation, and constraint shows limitation for the behavior of legal obligation.Fourth, legal obligation has special components. The structure of legal obligation can be divided into basic elements and supplementary components. Basic elements include behavior requirements and contents of behavior. Behavior requirements should be expressed by standard modal words, while contents of behavior should indicate practical constrains on act or non-act. Supplementary elements of legal obligation include subject element, time and space element, degree element and conditional element. Subject element can be divided into general subject and special subject. Conditional element can be divided into positive condition and negative condition. Time element, space element and degree element should be specific and clear.The fourth chapter demonstrates the legal principles which normalization of design for legal obligation clauses should be obeyed. It mainly contains four legal principles, namely principle of legality, principle of reasonableness, principle of proportionality and principle of benefit measure. The principle of legality includes the principle of law priority, principle of legal reservation and requirement of defmiteness in delegation. Principle of law priority must determine constitution priority. Principle of law priority requires compulsory legislation to follow the principle of non-contravention based on the theory of legal hierarchy. Principle of reasonableness determines the boundary about moral enforcement on the basis of distinguishing legal obligation with moral obligation. Legal paternalism can break through the limitation of personality development and the freedom of choice, helps to overcome the bias in the process of individual decision-making, lets personal interests and happiness come true. Legal paternalism undoubtedly can become a basic judgment standard for reasonableness. Principle of proportionality is composed of appropriateness, necessity and narrowly defined principle of proportion. The principle can effectively implement the balance between rights and obligations avoid power scarce and excessive and prevent the improper expansion of legal obligation. The characteristics of obligation legislation demonstrate that the principle of proportionality have broad application in the field of social governance. Principle of benefit measure can realize the interest balance, define the scope of public interest and prevent authority from imposing undue legal obligation in the name of public interest.The firth chapter demonstrates the structure rules which normalization of design for legal obligation clauses should be obeyed. It contains five rules, namely regularity, integrity, legal certainty, legalization and logicality of legal obligation language. Regularity can be deduced from the basic characteristics of legal obligation. Regularity includes necessity, possibility and feasibility. The illocutionary of legal language demonstrates the demand of regularity to legal obligation clause. Regularity shows that legal obligation should be obeyed; the rule does not allow the obligor free to make their choice. Regularity requests to distinguish the responsibility clause from the authority clause. Use policy clause cautiously and carry out behavior requirements into legal obligation clause. Possibility means that the law does not compel a man to do things. Whether the obligor has the ability to act depends on the cognition which comes from lawmaker’s judgment about human nature. Feasibility of legal obligation is determined by subjective and objective conditions; it requires that obligation legislation should not be allowed to lag or look ahead. Integrity requires filling the legal loophole and blank in legal obligation clauses; it requires the rational use of legislative techniques such as catch-all clause, enabling clause. Legal certainty requires concreteness and concreteness in legal obligation clauses, Standardizations quantification descriptive clause and restrictive clause are important ways to implement legal certainty. Legalization of legal obligation language is the application of linguistic knowledge in legislative design. The legalization expresses the characteristics of legal obligation. So the lawmakers should adhere the principle of negative rhetoric in legal texts, express the communication features about legal obligation language, correct choice the words of law, use legal terminology and legal terms to avoid the use of live, political and moral language, and transform policy language to legal language. Logicality of legal obligation language is the application of logical rules. The rules mainly solve contradiction and conflict in legal obligation clauses in order to implement the reasonable design.