On The Transformation Of Idea Of Civil Legislation In China

The thesis mainly studies on the transformation of idea of civil legislation in China. Based on the transformation of idea of civil legislation in continental law system and common law system, this thesis uses the methods of legal automatic system and comparative law to analysis the formation and development of idea on the civil legislation in both legal systems, and to use the same method to analysis the historic development and realistic experience on the civil legislation in China, then can obtain the conclusion that the idea of civil legal legislation is from accepting the idea of civil codification unconditionally to the idea of civil legal system on the practical oriented in modern time. The purpose of this thesis is to provide a systematic idea of civil legal legislation for Chinese civil legal legislation. The systematic idea of civil legislation integrates the merits of both legal systems, and promotes the development of civil judicatures, civil legislation and civil law.From the enacting process of two model civil codes of continental law system, we can clearly find that both civil codes as the object of civil law automatic system are the products of the civil law automatic system, which couples with the political automatic system and economic automatic system. When the external environment of the civil law automatic system has changed, the cognitive quality of the civil law automatic system will lead to the transformation into civil code, and the transformation will be showed through the legislative and judicial means. The movement of the codification of civil code in the continent law system has reflected the influence of politics, economy, science and philosophy since 17 th century. Both the French civil code and the German civil code are the products of movement of civil law automatic system.In the mid-late 20 th century, both legislative practice and judicial practice were different from the civil codification in 19 th century. The legislature separated the specific content from civil code continually to achieve the particular aim. Even in the process of judicial practice, the civil code must be interpreted by judge, and the judge need to create the new rule to solve the complicated disputes, so the civil code in countries of continent law system is facing the crisis of codification. Although these countries of continental law system can be through integrating the precedents and separate laws in the civil code, or by creating new civil code to maintain the civil code as the constitution in civil society, these results show obviously that the idea of codification of civil legislation in countries of continental law system has been transformed during a series of adaptive adjustment.Since the late Qing dynasty, China chose the idea of codification of civil legislation, and the government of the republic of China also adhered to this idea, but old China did not have the environment to run the civil code, until Taiwan’s economic boom in the 1960 s, the civil code played an important role in economic and social development after nearly half a century. At the same time, the civil code in Taiwan also is facing the same crisis with others regions of continental law system, so the idea of civil codification should be transformed at once. After the new China foundation, for political "one-sided", we learned a lot of things from the former Soviet Union, including how to make civil code, but we did not have enough conditions to make the civil law, so the several times intention of making the civil code failed.After reform and opening up, under the name of developing the comprehensive civil law, based on the principle of seeking truth from facts, the superior legislature formulated a lot of separate civil laws adapting to economic and social development. After some years’ efforts, the superior legislature in China has built the civil legal system, which covers the basic contents that is consistent with civil codes in other civil law countries. At the same time, through the judicial interpretation made by highest judicial organ, the separate civil laws in China maintain the system, and moderate openness. In this sense, the idea of civil legislation in China after the reform and opening up has transformed into systematic idea of civil legislation. In order to realize the benefits of systematic ideas of civil legislation well, the superior legislature should be timely to sort out the existing system of civil law, format “general principles of the civil law" as the general law, and other separate civil laws as the special law. According to the actual need, the superior legislature can enact the separate civil law to achieve a specific purpose within the framework of the common civil law, and every separate civil law can enact its special law for its specific purpose, which shall be formulated by the legislature.The civil law system which is built through the guidance of the systematic ideas of civil legislation is the object of running civil law automatic system. The dogmatic of civil law running in civil law system is different from the dogmatic of civil law which is guided by concept law, jurisprudence of interests, and evaluating jurisprudence. The dogmatic of civil law running in civil law automatic system can make complexity, which can drive the evolution of civil law automatic system, and the development of civil law system. The dogmatic of civil law running in civil law automatic system has a more interpretation for the development of civil law than the other. The systematic ideas of civil legislation are benefit for source of civil law. The civil law automatic system can introduce rules of other systems through the cognitive character belonging to the civil law automatic system, and make rules effect through the court’s judicial activity, which could relieve the uncertain knowledge of science of civil law now.The innovation of this thesis has three aspects. First, used the method of legal automatic system mainly, this owns the automatic characteristic in running and the openness in cognition, which promotes the evolution of the legal automatic system. Used the legal automatic system to study the transformation of idea of civil legislation, the method can be used to explain the process clearly that the civil laws are the products of coupling with some of automatic systems. Secondly, on the base of summing up the experience of civil legislation since the foundation of PRC, esp. after reform and opening up, the idea of civil legislation in modern China is the systematic idea of civil legislation based on the pragmatism which is guided by dialectical materialism. Thirdly, on the base of the guidance of the character of systematic idea of civil legislation that includes the unified basic value and the internal logic, and on the base of the active civil laws, the civil legal system which means "general principles of the civil law" as the general law, and other separate civil laws as the special law to normalize the specific fields, shall be set up.