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A Study On The Legislative Factors Of Civil Codes

Posted on:2005-05-25Degree:MasterType:Thesis
Country:ChinaCandidate:D MaFull Text:PDF
GTID:2156360152966282Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The Codification of China's civil law is right on its way unconversably. The civil code has raised great interest between the legislature and the legal science field. However, the codification does not mean the accomplishment of a series of legislative procedures, nor the mere combination of ready-made separate civil regulations or the plagiarism of foreign civil codes. In sum, there are much more important things such as social, economic, ethical, psychological factors need to be taken into consideration which will have immense effect on the execution of the would-be Civil Code. More attention, therefore, should be given to the political & economic, cultural background and the philosophic theory as well as the essential points that China lacks with the suggestions of how to achieve these goals rather than the legislation techniques or the code itself.After a brief review of the legislation and the historical background of Codex Justinian, Code Napoleon, The German Civil Code and The Japanese Civil Code, the author argues that the legislative factors of civil code's can be generally classified as essential and formal factor.The essential factor can be sub-classified as three aspects: the relatively developed commodity economy, the complete separation of the civil society from the political society and the modernization of the material institution as well as the spiritual world.The formal factor can also be chiefly sub-classified as the following points: theample academic polemics among the intellectuals, the abundant period of time for the legislation programming, the necessity of the centralization and generalization of the separate civil regulations and customary laws and etc.Next, two contrary viewpoints of legislation are briefly set forth: The Precedence of Code and The Precedence of Civil Society. According to Marxism's jurisprudence and China's actual legal practice, the author prefers the latter one.In all, the value of both historical approach and the comparative approach in studying is their far-reaching significance about the course of China's civil code legislation. As a result of the research, both the experience we should learn from and the potential harmness of a premature civil code to a newly legalized nation with strong traditional law-conscious is generally argued in the Conclusion.To sum up, the author urges all the scholars and the citizens to work diligently for the birth of an outstanding civil code of PRC with great enthusiasm, highly rationality and strong responsibility.
Keywords/Search Tags:civil code, codification, commodity economy, civil society, modernization of ideals
PDF Full Text Request
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