On The Source Of The Civil Law

The source of civil law as an indispensable content in science of civil law, belongs to the category of basic theory of civil law, but the understanding of it by the scholars is not only staying on the surface of it, but also focusing on the description. Such a fundamental theoretical problem, lies in the foundations of the civil law theory, does not have a relatively mature understanding of, can't support other facets of the civil law theory. In judicial practice, how to determine the choice and the application of dispute resolution rules, is the primary factor of correct judgment by a judge. The legal effect should not be separated from its social effect, and the enacted law of social norms in what circumstances and what extent into civil judges, is also inevitable question in the civil judicial practice, which depends on the source of civil law theory to provide guidance and support. Transition from the rules of laws to the rule of law needs not only the improvement of the legislation, but also the strengthening the power of judicial power. Most important thing is that the power of the rule of law should be transformed from the state power to the social power. To complying with the requirements of rule of law, the source of civil law should extend from the enacted laws to the practice of people's Daily life and the basic values to discover new trial resources. This article chose to construct the theory of the source of civil law on the application of law, and tries to make a whole research of the unique needs to the source of law by civil law itself, how to identify the source of civil law, how to apply the sequence and the effect of the source of civil law, the relationship between the source of civil law and the methodology of civil law and the issues of the source of civil law in our country. In the process of research, this thesis uses these methods to discuss: the method of logical reasoning, making a historical textual research, comparison and analysis, jurisprudence, legal method analysis, empirical analysis and dialectic analysis research method. In addition to the introduction, this paper mainly divided into the following five parts:The first part, starting from the analysis of theory, the source of law can provide function and value to the source of civil law, which is the basis of theory of source of civil law on the jurisprudence. “The source of law” is one of the most “fuzzy, ambiguity” concepts in the jurisprudence as a lot of scholars considered. The understanding of the source of law by the Chinese and foreign jurisprudence scholars can be roughly divided into two camps: the production of law theory and the application of law theory. The production of law theory refers to the perspective of law emerging or national legislation, and the application of law theory refers to the perspective of law applied by people. These two theories have their own features and functions. They can be distinguished by the different understanding of the law, the product of legal development in different historical stages, and the response to different legal thoughts. By contrast, the application of law theory has more advantages, which are as follows: 1.The definition is clear and easy to be distinguished from other similar concepts; 2. More conducive to play a role of guidance in jurisprudence, and is easy to be absorbed by the department of laws and the judicial practice. 3. More in line with the original meaning of the source of law; 4. Add to the content of legal methodology, to form an organic whole. From the angle of the application of law theory, the description of the concept of the source of law is: an aggregate and the collection of all kinds of rules which is used by the subjects of law application(mainly the judge) to build legal basis and legal reasons for a legal decision or judicial judgment. From the perspective of private law, there are many differences in the patterns of law application between the continental law system and the Anglo-American law system, the former is the type of "enacted law priority" and the latter is the type of "effect priority". But they also have many things in common on the basis of commonality and consistency: the private law order formed by the legislative and judicial practice, the expansion of the scope of the source of law, giving the judges more discretion, social and theoretical background, reasons, reasoning, the applicable methods and professional judge team system. All of these sectors determine the direction of the thinking on the problem of the source of law, including the source of civil law.The second part of this article attempts to seek for its demand for the source of law theory in the civil law itself. The source of civil law is to solve the problem that what do the judges use to make a judgment and where do the parties in action look for the trial norms in a civil dispute, which is clearly on the respective of the application of law. The civil law norms have the nature of “adjudication norms” which attributes to the demand of source of law. There should be a “basic norms” in the methodology of civil law which demands the source of law. The development and vitality maintaining of civil code attribute to the demand of source of law. All of those determine the source of civil law theory should be based on the application of law theory as if the civil law is one of law apartments. The civil law is Ius Civile, private law, and law of rights, which determine the source of civil law should be based on the theory of application of law. On the basis of above-mentioned, the definition to the concept of the source of civil law should be like this: it is the collection of all kinds of rules that the subjects of law application(mainly the judge) who need civil legal basis and legal reasons to use to make civil decision or civil judges in the application of the civil law activity. This part of the article not only determines the goals and directions for the content and the construction of the source of civil law but also distinguishes the source of civil law from other law department.After determined that we should consider the source of the civil law in the perspective of application of law, the third part is trying to explore the identification and the scope of the source of civil law. The standards of identification of the source of civil law should contain those: external formal standards, including authority, judicial applicability and predictability; intrinsic substantive standards, including social acceptance and proper rationality, conforms to the basic value orientation of the society. On the basis of these standards, we selected the statute laws and other normative documents, custom specifications and customary laws, autonomy specifications, contracts, legal precedent specifications, moral norms, legal theories, public policies, and other forms of the source of law usually discussed by the academic circles as the objects of identification of the source of law. We also analyzed whether those forms can become the source of civil law and under what conditions should be used as the source of civil law. This will be the foundation of determining the scope of the source of civil law in our country for the below.The fourth part, because of the definition of the source of civil law is based on the application of law, therefore in this section the application of the source of civil law should be discussed. First of all, on the foundation of classification and construction analysis of the source of civil law, the sequence of the application and the hierarchy of the effect must be discussed. First, the source of civil law can be classified as formal and informal on the authority. Also, it can be classified as the source of judgment to make a legal decision and the source of judgment assistance for explanation and argument. The source of judgment includes the formal source of civil law and the gap-filling source of civil law. The source of judgment assistance includes all of the forms of source of civil law that can be used for explanation and argument, not only the explanation source but absolutely also the gap-filling source. The sequence of the application of the source of civil law means that when the judge make a judicial basis, he should chose which source must be used first, and only if there is not a front form of the source of civil law, he could be able to use the latter ones. Different from the sequence of application, the hierarchy of the effect doesn't concern which external forms should be used at first. It concerns the rank of the effect in the internal legal system. Different sources of effect determine the levels of effect which the hierarchy of the effect takes shape. In the effect, the formal sources are usually prior to the informal sources. But if the informal sources are more in line with the interests and wills of the clients, they should be applied prior to the arbitrary norms other than the compulsory norms. In the system of formal resources, the application rule of the hierarchy of effect is “priority of law at the higher level over that at the lower level”, and the rule of the sequence of application is “the special law should be adopted before the common law”. But both rules should be used after determining whether the relations between the legal norms are supplement or reification.As a place of static resource about the civil judgments, the source of civil law can only show its values in the dynamic course of judicial application. So the application methods of the source of civil law reflect in the relation of the source of civil law and the legal methodology. After determined the scope and the rules of application of the source of civil law, its application function is realized in the course of application of all civil law methods by the judges during the judgments. In order to ascertain the path of the source of civil law, this part discussed the relation of the source of law and the legal methodology. The source of civil law is the place of civil law-finding, the object and the source of data of the law interpretation. The non-statutory law source in the source of civil law is the data for gap-filling in civil law, the sequence of which is determined by the sequence of the informal source. The source of civil law is also the content and object of the law reasoning and the law argument in the civil law suit. In these cases, the function and the value of application about the source of civil law are realized through the legal methodology.As a conclusion and on the discussion of the source of civil law theory, the fifth part should concern the construction of the specific system and the civil statute in China. First of all, on the respective of the reality and the future trend, the scope of source of civil law can be determined. On the analysis of construction of the source of civil law, the source of judgment about Chinese civil law should contains valid contracts, statute laws, customary laws, autonomy specifications, custom specifications, guiding cases, the basic principles of civil law and the jurisprudence. The first three of these are formal sources and the last four are gap-filling sources. Secondly, the sequence of application and the hierarchy of the effect of the source of civil law are ascertained. Among the source of judgment, the valid contracts and the statutes should be applied first. The sequence of application of the gap-filling source is as: autonomy specifications, custom specifications, guiding cases, the basic principles of civil law and the jurisprudence. On the hierarchy of the effect, the rules “priority of law at the higher level over that at the lower level” functioned in the statutes and the basic principles of civil law and the jurisprudence are in front of all other sources of judgment. All forms of source of civil law can be applied as the source of judgment assistance which dosen't need the sequence of application and the hierarchy of the effect any more. On the foundation of all discussed above, the clause of civil law in the Civil Code of China can be designed.