Civil Law In The Transformation Of China: Characters And Tasks

The introduction of this article is to answer two questions: What limits has the contemporary Chinese social transformation made to the nature of the civil law, that is ,the character problems of the civil law ;What role has the civil law played in the contemporary Chinese social transformation,that is,the mission problems of the civil law.In Part II, from reviewing the modern and contemporary developing history of the civil law , this paper intends to educe the limit and transformation of the nature of the civil law. As far as France is concerned, the most important significance of the formulation of the civil code lies in solidifying the fruits of Revolution through the form of the law; As far as Germany is concerned, the most important significance of the codification lies in realizing the unification of Germany. From the perspective of social transformation, the legislative background of "General rules of civil law" is similar to that of "French Civil Code". "General rules of civil law" is the production of the initial phase of the transformation of the contemporary Chinese society. It emphasizes the state's shaping the society form and the state's rational construction of the society form. Therefore, that in such times background "General rules of civil law" stipulates expressively the policy as a source of the civil law can be made clear. "General rules of civil law" is a result of compromising between the traditional social system and the new social orders. China Civil Code whose legislative background is similar to that of the "German Civil Code" is the production of the contemporary social transformation process of China. After all, the ideas of the social transformation will not be so radical when China Civil Code is established. And"General rules of civil law" has laid the foundation for China Civil Code.If "French Civil Code" as a private law is not mature enough, the "German Civil Code" as a private law is mature. In the period from "General Rules of Civil Law" to China Civil Code, "General Rules of Civil Law" has created free, equal and independent subjects in the civil law relationships and some new social habits which are distinguished from habits applied before "General Rules of Civil Law" period have formed in the social relationships. Therefore, "General Rules of Civil Law" is a immature stage of the private law and a transitional phase toward China Civil Code which as the private law is mature. The custom stressed in the judicial process in contemporary China and prescribed as a source of the civil law is the free, equal, and independent subject in the civil law relationships. Some new social habits which are different from "General Rules of Civil Law" have formed. Of course, the social habits applied before "General Rules of Civil Law" can't be ignored, but from the perspective of social transformation, regarding the custom as the latter is more appropriate. Such understanding will not only emphasize the role which "General rules of Civil Law" plays in the social transformation, but also avoid the entanglement of the illegibility of habits.Relatively speaking, the policy faces the early stage of the social transformation,while the custom faces the social transformation process , the subsequent stage and the civil code future. In the era of "General Rules of Civil Law", the civil law stressed on the state and rationality more. When applied the policy to some cases in the private law ,the state and rationality are not only emphasized but also served as the foundation of making the judgment, which means not complete autonomy of will. In the era of Civil Code, the civil law will lay more emphases on society and experience. When the custom is used to find the verdict of private cases, the custom serves as the foundation of making decisions, which means complete autonomy of will. When the judicial department faces circumstances unstipulated, in the era of "General Rules of Civil Law" it payed attention to the state policies but neglected the social custom, the result of which was that the phrase "Autonomy of Will" became the subject-verb phrase which stressed"will";In the Civil Code era, the judicial department focuses on the social custom, the result of which is that the phrase "Autonomy of Will" is the subordinate phrase emphasizing "autonomy". In the era of the "General Rules of Civil Law", it emphasized that the action of social organizations or individuals should keep in step with the state's. In the Civil Code era, the activities of social organizations or individuals have adequate room, that is, under the legal condition social organizations or individuals can act freely in private fields.In Part III,Firstly I discuss the demands of social order and the law integration of rule system from the perspective of the order and rules. In the early stage of social transformation, "General rules of Civil Law" faced the problem of how to deal with policies and practices. In order to highlight the function of the state's constructing the social form in the early stage of the social transformation, it posited policies but the custom into"General rules of Civil Law". How to coordinate and arrange the rule system including the custom, law and policy clearly is the mission of China's Civil Code. The social transformation made the civil code a living organism in the rule system. The variety and continuity explained separately that it is a concept in the geographical and historical sense. The demand of the unification of rules made the civil code the river pooled by many branches. The customs are these branches which meander through different places, moistening all the land and its people, passing through different times, experiencing enormous historical changes, Ultimately they blend into the Civil Code. If the creeks rise, the river will be filled. If the river rises, the creeks are full too. The social order maintained by the Civil Code has met people's need for security in the geographical and historical sense.Then this article discussed the relationships between the civil law and the Institutional Change based on the Institutional Change Theory. Behind the civil law stands the state with the sharp knife. The state stands on the rostrum, seizing the law with its left hand, holding the knife with its right one, criticizing the old social institutions and looking around the new social life. At the beginning of establishing a new social system, because it thinks the degree of reforming the old system is not enough, the state had no choice but to take some legal strategies. Therefore, the state puts the policy into"General Rules of Civil Law". When the legislation of China Civil Code is carrying through, every movement of the state is monitored by the community members, some of the strategies referring to tricks, some regarded as interference. New systems continues to appear and the social life reflects on and criticizes the content of the civil code. This is like a tug-of-war and the Civil Code is like a rope, one end connected with the state, the other with the community. The balance of common game rules produced in the process of strength contest has been obtained. In order to prevent too much intervention from the state, social organizations or individuals require to put the custom into the civil code. China Civil Code comes into being in the process of the induced institutional change and take on the task of coordinating interests.Finally,this article has surveyed the judicial significance and the role of the court from the perspective of social transformation. After the promulgation of the civil code and undergoing the social transformation for some time, the argument that pure positivism denies the judge-making-law is a fallacy. Court is the defender of the civil law rule system and in the same process it ensures not only the perfection of the civil law rule system, but also the communication and integration of the custom and the law. Whether new conduct rules are rational or legal is often estimated by judges. In a certain sense, one can say that the court will determine the direction and velocity of the induced institutional change. In the conclusive part ,this article summarizes the core content. The true private law is not the product of the early stage of the social transformation. The cultivating of the private nature of civil law needs the social environment. Then the spirit of China Civil Code is shaped through carrying out"General Rules of Civil Law". China Civil Code is the mature private law, In a certain sense, one can say, it will become China's first true private law. We have reasons to believe that China Civil Code will start a new era.