The Construction Of Civil Law In Application

Right is the essence of civil law system.The fundamental duty of civil law is to maintain civil subject's right.Meanwhile,judicial practice is also important in civil law system because the law must be obeyed in practice.Therefore,judicial interpretation should be one important item to help judges carry out their duty.Now,fast changes happened in usual life promote the civil law legislation.But,there is a difficult question should be resolved first.It is a conflict inheres between the bad quality of judge and high needs of people.This paper includes three volumes,nine chapters except the foreword and conclusion.The first volume is sources of hermeneutics of civil law.This volume includes two chapters.In this volume,the author analyzes the history of traditional Chinese hermeneutics of civil law and western hermeneutics of civil law firstly.Then,this volume generalizes the fundamental theory of hermeneutics of civil law.The second volume is fundamental questions in theory of hermeneutics of civil law.This volume includes five chapters.In this volume,the author analyzes the necessity,function,object,characteristics and basic principles.The third volume is operation of hermeneutics of civil law.This volume includes two chapters.In this volume, the author analyzes the several operating means of hermeneutics of civil law.In foreword,the author explains the reason of writing this paper,and analyzes several concepts including application of civil law,explanation,and hermeneutics of civil law,etc. Application is a important avenue to implement civil law and realize the value of civil law, one special activity that government agency and its personnel authorized by law use civil law to resolve disputes.Explanation is a activity that analyzes,explains some matters and creates new ones.In the process of implementing civil law,it is necessary to analyze and explain the civil law norms.In particular circumstances,it is also necessary to explain civil law constructively in accordance with the purpose and basic principles of civil law.This kind of explanation is helpful to make abstract legal provision applying to the specific cases. Therefore,explanation and application of civil law are inter-related and inter-dependent.Chapter?,"history of traditional Chinese hermeneutics of civil law".In the Chinese legal tradition,civil law bearing modern features does not exist.But,there still have many civil legal provisions regulating commodities trading.Meanwhile,civil judicial practices had contributed greatly to social progress and economic development.Traditional legal science is about interpretation of law including three parts.The first part's function is to make the official understand the meaning of legal provision and implement the law better through explaining legal language.The second part's function is to explain the letter of law.The third part's function is to explain the background and origin of legislation.There are two positions in the theory of legal science:One is the Legalists' position and the other is the Confucianists' position.The former has been called positive position;The latter has been called objective position.To explain the law with canon is a important characteristic of traditional Chinese law. Then,precedents were be often used to explain the law also.Besides,there were confined interpretation,extensive interpretation,analogical interpretation etc.In traditional Chinese civil judicature,the theory of legal science was used in civil law interpretation widely.Chapter?,"history and tendency of western hermeneuties of civil law".In fact,the western legal history is equivalent to history of civil law interpretation.In the countries of continental law system,the interpretation is made by priest,flamen,monk and augur had been the law in the early stage.In Rome dynasty,the jurist was the main body of making law.The effect of jurist was not only making law,but interpretation.In later stage,the power of making law had become the personal power of king.The power of interpretation by king replaced the power of jurist.After revolution initiated by capitalist class,the role of judge was set as only the mouthpiece of declaring legal words.Therefore,the judge had not power to interpret law.Then,these thinking had been denied later.With enactment of civil code in the most countries,the source of applying civil law had been united.Therefore,the object of interpretation had also been united.There are four kinds of interpretation.The first one is interpretation of using language.The second one is interpretation of these language used in legal provision in contradiction.The third one is interpretation of defect of text.The fourth one is the interpretation made when the law does not apply the case.In countries of common law system,the judge has the power of making law to deal with specific cases.The judge often use three kinds of interpretation alternately,semantic interpretation among gold rule and indirect interpretation.In modern time,there are two kinds of interpretation having broad influence on hermeneutics of civil law.One is ontology,the other one is demonstration.In the former theory,the law does not exist only because of creation.The law would be meaningless without the understanding and interpretation.Therefore,the interpretation is inevitable.In the latter theory,only the law negotiated by reasonable person has the effect.Therefore,when the judge interpretats the provision,he needs to make enough explanation after selecting one kind of interpretation.Chapter?,"characteristics of hermenenties of civil law".This chapter includes five aspects.The first one is the relevance of particular case.It has three meanings.Origin of interpretation is the need of particular case.Duty of interpretation is to confirm the applicability of legal provision to particular fact.The letter of law should be interpreted in accordance with fact.The second one is the value judgments.It means that hermeneutics of civil law is a kind of value judgments made by judges based on the value of law.It is not only simple using formal logic,but not independent value judgment breaks with value judgment of civil law.The third one is construction.Hermeneutics of civil law are made based on general legal concept combining with purposes of legislation and political morality.In this process, the judge must obey the rule,but he can not construct regulation with general constraining power.The judge must be neutral.The whole judicial process should be started up by plaintiff. These characters indicate that the nature of making up the defect of law is settling the disputes but that making general rule.Therefore,construction of hermeneutics of civil law is not making law by judges but interpretation by judges with authorization by basic principles of civil law.Forth one is arbitrariness.The content of interpretation should get from the civil law not the judge's personal opinion.The fifth one is circularity.During the process of interpretation,judges should put the particular provision and the fact into the whole body of civil law and get the real meaning of object from the relation between the civil law and the particular facts.Chapter?,"meaning of hermeneuties of civil law".It is impossible to make a civil law beyond lawmaker's understanding because the finiteness and relativity of cognitive ability. Therefore,defect and loop-hole always exist in every civil law.Law is the result that lawmakers sum up the past experience.But,it would be used in the future.Therefore,there would be a conflict when the old law meet's new cases.Civil law is made by concessions,the reflection of the common will of lawmakers.As we know,the common will consists of everyone's opinion.The language used by civil law is one special kind of written language. This kind of language is very abstract.Therefore,it makes us to understand the civil law more difficultly.In fact,written code could not be used according to specific situation.To resolve this problem,legislature does not make specific regulation.However,the certainty of provision would be harmed.In other words,the certainty of law is incompatible with social development.Civil law would represent the past time and constrain social development if this contradict could be resolved.The judge should use the law interpretation to deal with specific cases to realize the goal of civil law.Chapter?,"object of hermeneutics of civil law".No doubt,civil law is the object of hermeneutics of civil law.Meanwhile,as one kind of social practice,civil law has its object. In modern society ruled by law,to obey the law has already become one life style.Therefore, one law understood by common people should be the precondition of legislation.This fact requests the legislative officers to use simple,exact words as possible as they can,and state the legal provision clearly.Chapter?,"standpoint of hermeneutics of civil law".The goal of interpretation is analyzing the original idea of legal provision.In history,there were two vis-(?)-vis positions. The positive position makes it clear that the original idea of law is the same with the intent of lawmakers'.Therefore,the goal of interpretation is explaining the opinion,intent and sense of worth of lawmakers.The objective position insists that the meaning of civil law provision be equal to the meaning of the provisions implemented most easily.The meaning of civil law provision is the meaning of civil law provision,but not the intent of legislature.The origin of positive opinion is stability of law,protection of trust and power separating.The discommender of positive opinion thinks that it is very difficult to find out the real meaning of law makers'.It is wrong for judges to think over the cases using the standpoint of lawmakers'. The origin of objective position is the knowledge of society.After the enactment,civil law has already its own meaning.The discommender thinks that the law will be meaningless without considering the intent of lawmakers'.The author thinks that both positions only disclose part of truth.Both positions are not inconsistent.When determining the object of interpretation,we should think over the good part of them.The conflict between these two positions comes from different attitudes towards relationship between validity of word and objective intent etc.Therefore,the object of interpretation is to confirm the connotation of civil law provision.Chapter?,"basic principles of hermeneutics of civil law".This paper chose legitimacy and propriety as the principles of confining the scope of interpretation.The legitimate boundary of interpretation means that the behavior of judge should not violate the regulation. It does not mean that the process and result should in accordance with regulation.But,the result should be confirmed legitimate.Constitution law is the most important regulation that the judge should obey the process of interpretation.Furthermore,the interpretation does not need to adhere to word rigidly,but considering the social development and the whole system of civil law.To confirm one interpretation properly will help us to realize the balance of interests and satisfy the need of people.The proper boundary of interpretation means that the process of interpretation should proper,and could be understood by people.The interpretation should follow the proceedings of gathering opinion of people,getting everyone's satisfaction and declaring the result.Except for the means to accord with idealism,the judge should sequence every kind of interpretation accord with logicality.Chapter?,"interpretation of civil law".Interpretation of civil law means that judges' explaination of the meaning of civil law provision.The specific operation of explanation should consider sense of word,syntagma,language environment and paragraph.The explanation of sense of word should carry out following four steps.The first step is to analyse the morpheme of compound word.The second step is to analyse the item of polysemic word. The third step is to analyse the near synonym.The fourth step is to analyse the same word used by the whole law.Syntagma consists of simple sentence,compound sentence and group of sentence.Analyzing the syntagma is equal to grammatical analysis.The function of it is making the meaning of provision clear through analyzing the arrangement and meaning of sentences.Otherwise,the explanation should in accordance with rule of paragraph.This rule means that the meaning of word should be understood in specific sentence and the whole text. To get the meaning of the whole text,we should understand the specific sentence and words firstly.At last,we could understand the concept,provision and the sprit of civil law precisely. We also could confirm the applicability of original meaning of specific diction.We could deduce the real meaning of provision from the established results.According to rule of paragraph,the interpretation of civil law provision should be included in the brand system based on constitution law.The environment would help us understand the real intent of law makers' when making the law.This is also the basic mcaning of explanation of law. Furthermore,several words and expressions are borrowed from civil code of other countries and other branches of learning.We should notice this fact.Chapter?,"construction of civil law".The construction of civil law is made by judges with authorization by basic principles of civil law through making up the defects of civil law, supplying uncertain concepts and general provision,correcting the faults of legislation.The basis of justness of construction is the authorization by basic principles of civil law.The construction has arbitrariness.The problem of construction only happens in specific cases. The construction has relationship with particular cases.The construction is based on the current civil law system.Therefore,construction and interpretation have subordinate relationship.The judges should insist on unity of purpose and regularity when the construct civil law provision.The ways of operation include the way according to principle,ideology,legal theory and nature of civil law.The principle comes form the social life,Its content is always broad and uncertain.But judges could find the standard applying to the judgments.The paper studies the way of constructing civil law.There are three ways to construct civil law according to legal theory.One is analogy.The other is confine and broad the purpose.The last one is balancing the legal interests.The purpose of constructing the civil law according to nature of matters is finding out the rule of matter.Therefore,the means of sociology, economics,history and practical rational belief are necessary.In conclusion,the author sums up the whole paper.Hermeneutics of civil law is the process of analyzing,explaining and constructing the civil law by judges in settling the cases. The aim of interpretation is finding out the meaning of civil law provision.The object of interpretation is civil law provision and other matters.There are two ways of operation.One is explaining the meaning of civil law provision.The other is constructing new meaning with authorization by basic principles.In dealing with cases,judges should explain and construct the civil law provision according to principle of interpretation.