The Type And Function In Presupposition Theory Of The Civil Law Subject

Presupposition is a method, by which a context is set for further discussion. And presupposition is also a statement presupposed unconsciously as true in the process of discussion and research. It is undisputed that legal institutions are constructed based on certain presupposition. The presupposition theory emphases issues and legal phenomenon for research shall be processed in their specific context, rather than approached once for all without context checking.Conceptions of legal person in civil law such as"the equal person","the rational person"and"the person knowing the national law"are not held sufficiently correct in academia. An extreme approach is popularly taken that legal person's equality, rationality and knowledge of national law in civil law are common sense and an indisputably true statement, as to which an examination is of no necessity. As a matter of fact, legal person in civil law, which serves as the presupposition for framing rules, is a simplified ideal model based on person of much more complexity in reality.The equal person presupposition serves its functions as follows: Firstly, the presupposition of legal person also includes exceptions. The logical rule-exceptions approach, based on which legal norm are scientifically produced for judicial decision, reflects the inequality in reality. Secondly, the rule-exceptions approach provides grounds for the protection of social disadvantaged groups, who are defined in comparison with the advantaged groups. The protection of social disadvantaged groups is of proper degree. Lastly, exceptions shall be invoked in case that the presupposition is not sufficient for justness. The rational person presupposition serves its functions as follows: Firstly, the presupposition gives explanation for challenges rising from reality. In civil law, the presupposition experience an evolution from unbounded rationality in the past to bounded rationality at present, so legal person in present civil law is not always"strong"or"sophisticated"any longer. Secondly, the presupposition leaves space for the development of legal norms applied to irrational person. Lastly, the presupposition provides explanation for the theoretical accommodation of rational person and irrational person. The presupposition of person knowing the national law serves its functions as follows: Firstly, it makes clear who is obliged to disseminate civil law. Secondly, scientific method can be drawn from the presupposition for fixing the time frame from the promulgation of civil law to its implementation. Thirdly, it naturally flows from the presupposition that legislation language and legal concepts shall be pellucid. Lastly, it can be deduced from the presupposition that proper legal practice can be one of the legal sources, from which civil law derives its rules, in case that they are not in contradiction with the national law.