The Reception Of Private Jural Relations Theory In China

The science of civil law is factually the study of private jural relations which are named the second fundamental concept and hub system of civil law.Nevertheless,they have not been deeply and systematically studieded so far and little attention have been paid to the understandings and the doctrinal reception of the Private Jural Relations Theory in China. This thesis is devoted to the study of the Private Jural Relations Theory so as to verify its process and contents of reception against the background that civil law system is established in our country by means of legislation.It's well known that the reception of civil law begins at the last years of Qing Dynasty,which marks not only the breakdown of traditional Chinese legal system but also the institution of thinking pattern of private jural relations,as a result, civil law in China takes root.It turns out that textual research of the Private Jural Relations Theory reception process is meaningful in sense of academic research and helpful to understand the civil system.The Private Jural Relations Theory like other theories in the field of arts is not brought into birth and accepted in one step.To clarify the process and contents of the reception is primitively meaningful,otherwise,neither the real understanding of nor the reflection upon the Private Jural Relations Theory is possible.In sum,the textual research of reception of Private Jural Relations in the late 19^th and early 20^th centuries in China is justified, reasonable,practicable and necessary.This thesis consists of nine chapters which respectively elaborate on the objects,process and contents of the doctrinal reception of the Private Jural Relations Theory in the late 19^th and early 20^th centuries,with the logical thread goes as following:Based on the necessity and feasibility of the research,this thesis firstly investigates into the foundation upon which the Private Jural Relations Theory comes into being so as to explain why the theory was born in Germany instead of other countries;then the writer examines how the theory is developed into a basic theory and a thinking pattern of civil law by its founder Friedrich Carl von Savigny.Afterwards the writer looks into the reception process of the Private Jural Relations Theory in China,and it turns out that German Civil law has been transfered from Japan to China;in the end,this thesis centers its attention on the substance and contents of reception of the Private Jural Relations Theory in China.In addition to the logical thread going through the thesis,logical connections also exist in each chapter. Chapter One:Introduction.Three problems are discussed in this chapter:Firstly,the subject of the thesis is determined,so as to clarify the central issue discussed in this thesis and avoid the intolerable confusion of such different conceptions.Then current researches concerning the Private Jural Relations Theory are examined,as a result,it is found that the current researches are not in conformity with the kernel place in civil law of this theory which has been universally admitted by scholars of civil law system though.In the end comparisons of jural relations in different law subjects are made,which fully prove that the Private Jural Relations Theory in civil law is one of important theoretical sources for other theories and it is specifically characterized with equality and freedom.Chapter Two and Three:Reception Objects.The second and the third chapters,the first part of this thesis,center on reception objects.It is well known that theories can never be really understood unless the historical backgrounds in which they are brought into birth are made explicit.Therefore it is necessary to look into social and theoretical bases on which the Private Jural Relations Theory was born.In the second chapter,the analyses of social foundation laid to bring the Private Jural Relations Theory into birth are made from two aspects:the tragic history of the country and nation of Germans,and the twists and turns of the Socio-economic development.Nevertheless the theories of Legal Science are not only based on the social basis but the ideological basis.In fact the theories of Legal Science in a way are the representation of ideals in law.Therefore the second chapter then applies attentations to the Rationalism to illustrate the ideological basis of the Private Jural Relations Theory.In this chapter,it is believed that the German Private Jural Relations Theory is the product of Rationalism in the period of the Enlightment,as it is exactly the demand made by the Constructive Rationalism on Legal Science to constitute the system of civil law and even regulate the complicated social life with the abstract the private jural relations which is formulated by human beings.With the bases on which the Private Jural Relations Theory was born analyzed,it is necessary to study the birth and development of the Private Jural Relations Theory,which is carried out in the third chapter.In this chapter the ideas and works of Savigny are examined,and it is found that Savigny are designed to build a unified core for the civil law,and private jural relations are the core.The civil law is tightly unified and forms a set of stringent structural systems.It can be said that the German civil law in the world are impossible to obtain the current status and honor without the Private Jural Relations Theory.Chapter Four,Five and Six:Reception Process.The fourth,the fifth and the sixth chapters,the second part of this thesis,center on reception process.Chapter Four attempts to inquiry the process that the Qing dynasty finally is on the way to the Civil Law System at the end of Qing dynasty.This historic selection makes our country a clean break with the traditional Chinese legal system by legislative reception of civil law of the Continent Law Family.The reception of civil law in China does not directly transplant from European countries,but from Japan,and the first draft of civil code of Qing dynasty is the fruit of legislative reception,though it does not become the formal code.Chapter Five argues that Japanese civil law is the direct reception object of Chinese civil law,and German civil law is the ultimate reception object at the end of the Qing dynasty.Chapter Six examins the doctrine reception process of civil law in the early period of the Republic of China.In short,after several decades' hard work at legislative and doctrine receptions of German civil law,Chinese civil code is finally made,with rules,the knowledge system and the theory system of German especially built into Chinese civil law.As a result,the science of Chinese civil law gradually forms and a class of civil law scholars cultivated by German civil law system and theory also appears.Chapter Seven and Eight:Reception Contents.Both the seventh and the eighth chapters constitute the third part of the thesis,the reception contents of the Private Jural Relations Theory.Since the second part is concerned with how the German civil law is transferred from Japan to China in the early 20^th century,it is natural then to turn the attention to what is inherited,that is the contents of reception of the Private Jural Relations Theory, which is the core of the science of civil law.The doctrine receptions is mainly carried out by works of General Theory of Law and the Pandect of Civil Law,so the seventh chapter exams the works of General Theory of Law in the early 20^th century in our country,while the eighth chapter exams the works concerning civil law of that period.By means of analyses it is found that the Private Jural Relations Theory in China in the early 20^th century is characterized with the following attributes:Firstly,the Private Jural Relations Theory represent the whole legal science at the very beginning of reception;secondly,it is both a thinking pattern and an effective way to understand and explain legal phenomena to consider private jural relations as the core of civil law as well as the science of civil law;thirdly,it is commonly believed that private jural relations are the results of private lives,but whether they belong to live relations or private jural relations,different scholars hold different views;fourthly,there are private jural relations among people,but it is doubted that whether private jural relations between persons and things exist or not;fifthly,what is the relation between the private rights and the private jural relations.Chapter Nine:Reflection and Conclusion.The last chapter is reflection as well as a conclusion.This chapter firstly emphasizes that it is greatly necessary to carry out the reception research because of the insufficiency of reception history research on civil law.And it is further reflected that the science of civil law demands us to trace back to the origins of the theory,which is a circumstance thinking pattern to study science of civil law.Upon reflection the chapter finally comes to the conclusion and it is especially pointed out that this thesis not only provides us the historical origins to better understand the Private Jural Relations Theory,but also practices a new method of studying the science of civil law.