On Legal Concept In Civil Law

The legal concept is just the primary cell of law and also the basis of legal thoughts and legal reasoning.Although the legal concept is very familiar,we can't say we have had a complete grasp with it.Factually,there is a still a long way for us to grasp concerning the concept itself.There is still much ambiguity in the recognization of legal concept and many handicaps existed in legal concept construction especially in our country where the civil legislations fall far behind from those who have highly developed ones.The objective of this article is to consider the fundamental functions of legal concept in civil code and make an analysis of ordinary stipulated technique as well as the content of legal concept in Chinese civil legislation through the analyzing Conceptualist Jurisprudence and the role played by legal concept in civil code by way of methodology of jurisprudence. In the following Part I, the nature of the legal concept and its function in civil code will be discussed. As for the nature of legal concept,It borns with the normalization ,abstraction ,definitude with certain obscurity and special connotation. The legal concept in civil code have some functions,such as the function of constructing the legal system, the function of developing the content of law, the function of equalizing the benefit of law , the function of keeping the civil code remain open character. Part II has a discuss with the roles played by legal concept in the formation of the system of civil code.According to the author, methods to form the system should be met with the demand of building an open-system of civil code.In order to conquer the definitions borned with civil code and help the civil code always keep its vitalities, it is not only necessary but also useful for the civil code to keep the open character.As discussed in the textbook,the legal concept can't help fully in the formation of the organic system such as the system of civil code because of some reasons underlined in the textbook .To construct an organic system ,principles are indispensable and the abstract concept should be formed into legal categories .Legal categories are sometimes useful in the formation of legal system but it has its own definitions and can't evaluate all the whole system with a united standard.thus it can't play its role indispensably in the formation of civil code without the guidance of the legal principles.Although the functional concept has some roles in building the civil code with its evaluation,it can't build an organic system because of its partial and individual function.Therfore, "it is not the legal concepts but the legal principles that have formed the system of civil code ". In Part III,We have discussed about the function of the legal concept in the application of civil code.The textbook especially has evaluated the modes of law application in the perspectives of Conceptualist Jurisprudence.The textbook has pointed out that there are some functions of legal concept in jurisdiction ,but the functions can't play fully just through the applying the legal concept as just the ambiguity has said. Centered on the grammatical interpretation, the textbook has appraised the interpretation procedure of legal concept as well as the status and limitation of grammatical interpretation .In the end of this section,the author points out that the roles of the legal concept should be fully played in jurisdiction and the judicial right should be fully brought into playing in order to keep the vitality of the civil code not just by applying the legal concept said by Conceptualist Jurisprudence. After fully discussing the functions of legal concept in civil code,...