Study On The Basic Prirciple And Application Of The Civil Law

The civil law basic principle are the basic criterion of civil legislation, civil judicial and the civic action, it is the topmost value criterion and the spirit essence in the civil law, constituted the civil law ethics foundation. Before the general provisions of the civil law promulgated, the scholars mainly paused to the civil law basic principle understanding in the surface layer, emphasized its socialism as a result of the planned economy influence. After its promulgating, the academic circles also gradually tended to understand the rationality in the civil law basic principles ,generally thought the civil law the basic principle are the equal,opinion autonomous,the prohibition of right abuses,the honest credit,and the popular behavior principle. According "People Statute book" of the mainland legal system'development course, we can see the civil law basic principle is playing an important role. Because the civil law basic principle entrusts judge with a bigger freedom authority to make decision, enables judge to carry out judicature creatively, thus adapted the politics,economical and the social storm's change which lasted several centuries. The civil law basic principles can better manifest its social value, the implementation of the thought "humanist" , and overcomes the written law's limitation. But the civil law basic principles'implementation is judges'quasi-legislation., needs to limit it, otherwise judge possibly can abuse the judicial authority, thus violates the goal of the civil law basic principle. Judges'judicial activity on basic principle can be divided into obvious judicial application and concealing judicial application. As for obvious judicial application, judges'activity is quasi-legislation. As conceding judicial application, judges are exercising judicial discretion. We need to systematize the procedure to restraint Judges outside and establish internal restraint——civil law thought. Through this kind of method, we strive to achieve the harmony among misty and certainty, subjective and objective.