On The Interpretative Theory Of The General Clause In Civil Law

The dual values of stability and openness characterize modern civil law.Based on the complexity of real life(i.e.,some behaviors have been stereotyped,while others have no such characteristics or have not even been considered by the legislation),the legislators have chosen different legislative techniques to shape different norms.Still,they are all products of the tug-of-war between the stability and openness of the law.The general clause was initially widely adopted in civil legislation,including the Civil Code of the People’s Republic of China(Civil Code),as a technical means of implementing openness supplement to the legal rules of fixed constitutive elements.However,unlike extraterritorial civil law,the Civil Code adopts the legislative technique of externalizing the internal system,making the basic principles of civil law the ultimate means of implementing openness.Therefore,the general clause in China can only be considered after the basic principles of the Civil Code.The external system of the Civil Code thus presents a unique pattern of "basic principles-general clauses-rules." Although the general clauses of domestic and foreign law are the same at the level of legal concepts,they differ in the empirical norms of civil law.It means that the interpretations of the general clause in domestic and foreign law will appear differently.However,the attentiveness of past research in China on the commonality and fundamental issues of the general clause is far less than in the extraterritorial academic community.Also rarely specialized discussions are often directly transplanted the extraterritorial doctrine to the context of China’s law.In this view,if China’s civil law interpretative theory continues to construct the basic theory of general clause with extraterritorial theories without any discrimination and continues to fail to respond to the localization,fundamentality,and commonality of the general clause,this interpretative theory will inevitably fail to comply with the requirements of the construction of an autonomous knowledge system of civil law.And it will jeopardize the unified and correct implementation of the Civil Code.The study of the general clause of the Civil Code based on the interpretative theory requires solving the following three preliminary problems first.(1)how to define the general clause in the complex norms of the Civil Code.In this regard,it should be observed from the two respects,i.e.legislative technology system and the theory of elements of law.the former is the source of such provisions,and the latter is the result of the action or the former on the enacting law.From the level of legislative technology,the general clause is the legal product that implements openness.Still,the Civil Code maximizes requirements of openness by using basic principles as a legislative technique,and the general clause can only reside under these principles.From the perspective of the elements of law,in the context of China’s law,the general clause is subordinate to the legal norms with the nature of legal rules rather than principles.(2)what is the significance of studying the general clause from the interpretation theory perspective?In the system and structure of the Civil Code,the general clauses bear the critical mission of integrating the internal and external systems of the Civil Code,and the study of such provisions is conducive to releasing the systemic effect that the Civil Code should have.In the application of the Civil Code,the general clauses are the key to activating the open mode of application,i.e.,they can refer other norms to the application of the Civil Code,but only under the restriction of the interpretive perspective.This kind of referral neither leads to the evaluation made by other norms to replace the Civil Code nor contributes to the arbitrariness of the adjudicator.(3)what position should be taken on the interpretation of the general provisions of the civil law study? In this regard,it is necessary to take the integration of the internal and external systems of the code as the primary requirement,to take the functionalist civil law approach as the research paradigm,and to follow the direction of the requirements of the construction of the autonomous knowledge system of civil law in China.The first issue of the interpretative study on the general provisions is the identification of the general clauses of the Civil Code,which is centered on establishing specific identification criteria.This question consists of three perspectives.Firstly,the basis for establishing the identification criteria is the prerequisite step for solving the above problem,and only the normative function can be assumed as the vital task of selecting the basis for the identification criteria.The function of value evaluation takes authorization as the premise,reception,and invocation as the method,and flexible application of individual cases and system innovation as the result.It is situated at the top of the normative functions of the general clause,which implies the function of these provisions as the basis for adjudication of the relevant cases.The function of value evaluation and the function as the basis for adjudication support each other by integrating the internal and external systems of civil law and the normative system of the civil law of the provisions.Secondly,what identification criteria are deduced from the normative function,and how are these criteria applied in the identification process?These are the critical links to solving the above problems.Value-opening concepts,complete logical structures,and rule-embracing status carry the normative functions,which makes them the identifiers of content,form,and rank respectively.Finally,the results of applying the above identification criteria in individual cases can be added to form a typology of how the general clause manifests in empirical law.The second issue of the study on the interpretive theory of general clause is the order in which the application of such provisions falls within the legal methodology,i.e.,whether their application is a matter of legal interpretation or legal continuation category.In this regard,the reason why the application of the general clause does not belong to the category of legal interpretation is not because the various methods of legal interpretation based on previous consensus claimed cannot be applied to such occasions,but because the application of such provisions is inconsistent with the essence of legal interpretation,which is to search for the meaning of the legal text.The ineffectiveness of the method of legal interpretation is just the appearance of this substantive reason.On whether it is a legal continuation,the answer is that the process of applying such provisions is the process of legal continuation,because the general clause itself can not constitute a legal loophole,and it can only be used as a basis for filling the legal loopholes arising from its subordinate norms.According to the criteria for defining legal loopholes,the general clause cannot constitute a legal loophole because their unsatisfactory nature does not stem from the fact that they are contrary to the plan but rather from the failure of the plan.However,the identifying and filling of loopholes are interrelated but independent processes.Although the general clause is not a loophole,its authorization function,which is contained in the function of value evaluation,determines that it can be used as a basis for filling legal loopholes.According to the degree of detachment of filling loopholes from the empirical law,in the technique of filling open loopholes,the application of the general clause should be inferior to that of the customary law and analogy but preferred to that of the principles of law.In the case of hidden loopholes,the application of such provisions should be inferior to that of purposive limitation or expansion.The third issue of the interpretative study on the general clause is the improvement or choice of the method for concretizing such provisions.In other words,the concretization of the general clause is the concretization of the concept of value openness in its constituent elements.Still,the operating frameworks of the various methods of concretization are entirely different.The case group or typology method uses the common characteristics of the case group as the basis to generate alternative constituent elements,which replace the original constituent elements.The dynamic systematization method replaces the original constituent elements with elements extracted from the legal theories or principles involved in the pending cases or legal provisions.The enumeration of considerations approach does not replace the original constituent elements but specifies different considerations based on practical experience.If the consideration factors can be satisfied,it can be deemed confident with the constituent elements of the general clause.However,various specific methods have their endogenous limitations—the case group or typology method presupposes the existence of precedent decisions.Once the precedent does not exist,individual cases will have no reference,which contradicts China’s judicial practice.The shortcoming of the dynamic systematic method is the limitation of elements and the doubtful weight.At the same time,the basis of the evaluation and the principle of the example offered by legislation are often missing.In the method of enumerating considerations,many issues could be improved in the design and application of the factors.Based on the advantages and limitations of various specification methods,judges should not have a singular choice of concretization methods for general clauses in terms of individual case judgments.Still,they should encourage multiple methods to work together.Because of the drawbacks of the method of enumerating considerations and the method of case group or typology,a dynamic systematic process should become the judge’s first choice in specifying general provisions of civil law.Due to the normative nature of the judicial interpretation,its enumerated considerations can serve as elements in the dynamic systematic approach,only that the judge needs to illustrate its relationship with the legal principles or values extracted from the dynamic systematic approach.On the other hand,the rules of decision of the guiding cases can provide the basis for evaluation and examples of principles for the dynamic systematization approach.