Legislative Research On The General Rule Of Non-tort Compensation

“The civil code is a systematic express of civil law norms, and the systematic is animplication that civil code is supposed to have.”①Under the background ofcodification, legislators and researchers are committed to systematic of the China’scivil law as well as the consistency of civil law norms. As a system, which has defectsin aspect of systematic and consistency, the Non-tort Compensation system needs tobe adjusted in order to meet the demand of the perspective China’s Civil Code. Thebest way to achieve this goal is to formulate a rule that can summarize the charactersof Non-tort Compensation, that is, the general rule of Non-tort Compensation. Thisarticle revolves around the legislative issues of the general rule of Non-tortCompensation to conduct its research.“The legal value is the forerunner of legislation thought.”②Therefore, The firstlegislative issue is related to the legislative value. Legislative value interprets thejustification and the necessity of the legislation. As to the aspect of justification, itfocus on the conjunction between the legislative value that the general rule ofNon-tort Compensation is pursuing and value goals that whole society hasacknowledged. The legislative value related to justification embodies the combinationof justice and order; as to the aspect of necessity, the legislative value embodies theunique effect in meeting the realistic need of the society and the legal reform. To bespecified, it is an efficient method to hold back the random tendency appeared inlegislation aspect and judiciary aspect, it is also an efficient way to make up thedeficiency of order value that the Non-tort Compensation system is suffering from as well as an efficient way to promote the systematic of Non-tort Compensation system.The next legislative issue needs to be solved is the system positioning for this generalrule, which means, to find a suitable position for this rule in civil law system.Conducting system positioning not only meets the demands on systematic andconsistency picked up by civil code, but also offers convenience to judges when theyare looking for norms. The system positioning is determined by the clarification of theattribute and function of Non-tort Compensation system and its general rule.“Offering compensation” indicates that it is a duty set by Obligation Law. So, as anrule regulates how the duty of compensation is created, the general rule of Non-tortCompensation belongs to rules of which regulate the reasons cause the debt. Thegeneral rule regulates an independent reason, therefore, it is an paralleled rule tocontract rule, tort rule, and so called “Condictio sine causa” rule and so called“Negotiorum gestio”rule.The third legislative issue is about the legislative model. This issue involves theselection of different legislative models. It is very important to compare models thatdifferent countries have applied. Although those models varies country from country,but two basic models could be summarized: one is concentrated model, the other isdistributed model. When a choice is made among the legislative models, two factorsare always taken into account, say, the legal tradition, and legal education tradition.When we choose a legislative model for the general rule of Non-tort Compensation,we have to consider a factor, which is not included in the two above, that is, we haveto choose a model that can in favor of making a general that full embodies thefunction of Non-tort Compensation.The fourth issue is the content designing of this general rule. The principles needed tobe considered when designing the rule includes: the content should reflect thelegislative value; the content should maintain the systematic of civil law; the contentshould be determined by the rule position. Most importantly, the legislative model should be taken into account when the content of this rule is designed. Based on thefact that Non-tort Compensation system and its general rule only adjust “benefit-loss”relation, the main body of obligation and right are beneficiaries and losers. Theconstitutive requirements include: the fact of benefit; the fact of loss; causation andthe fact that benefit has legislative authority. As to the legal result, the general rule issupposed to express as “offering an appropriate compensation”. After clarifying theseconstitutive factors, the general rule could be designed based on different legislativemodels.