Research On Shen Jia-ben's Civil Thought

Shen Jia-ben was born in Guian county, Zhejiang province in 1840. Influenced by his father, Shen Jia-ben was not only sympathetic with people who lived miserable lives, but also angry with corrupt officials. Thirty years experience of working in the department of criminal justice, long-time experience of being involved in politics and whole- life study of law and precedents of Ching dynasty made Shen Jia-ben an eligible person to be the chancellor in charge of the legal reform at the end of Ching dynasty. From 1902 to the collapse of the Ching government, Shen Jia-ben had been in charge of the legal reform. Guided by Shen Jia-ben 's thought of combining the west and Chinese ,the old and the new, the out-dated law was reformed, foreign codes were translated and many new codes were made. The process of modernization of Chinese legal system was thus opened.After Opium War, with the development of the capitalistic production relations, the old and scattered rules of civil law was not adaptive to the new relations, so it was imperative for Chinese to made a new civil code to adjust and protect the new personal relationships and property relationships. At the same time,in order to take back the consular jurisdiction grasped by western countries, modifing old Chinese laws in line with the models of western laws was the direct incentive to make Draft of Civil Code of Ching. Proposed by Shen Jia-ben and Yu Lian-san, Draft of Civil Code of Ching adopted the legislative pattern of separating commercial law from civil law and took the legislative modles of Germany and Japan. The first three parts of the draft were drafted with the help of Japanese experts. The content of the first three parts absorbed the important principles of modern civil law, such as the principle of freedom of contract, the principle of respect for personal property and principle of fault liability, so it can be regarded as modern civil law. On the other hand, the last two parts of the draft were about personal status and the content of the two parts was deeply affected by Chinese ritual, still based on patriarchal-feudal ethics and embodied the legal tradition with duties as basis of law. As the organizer of the work of drafting Draft of Civil Code of Ching, Shen Jia-ben's civil thought was the combination of Chinese traditional Confucian thought-being sympathy for people-and modern western civil thought based on principles of equal personality and freedom of property. The core of Shen Jia-ben's civil thought was modern humanism.Showing respect for personality was a basic principle of Shen Jia-ben's legal reform practice. Shen Jia-ben's personalism on law contained abstract equality of personality and fundamental conditions for maintaining concret personalities. Shen Jia-ben insisted that personalities be equal, show respect for personality and protect freedom of personality. His point of view of equality of personality contained prohibiting human traficking ,protesting against slavery and advocating equality among different nations. As far as showing respect for personality is concerned Shen Jia-ben brought forward many progressive proposals such as abolishing cruel punishment, prohibiting extorting a confession by torture and reforming the old system of execution. Shen Jia-ben's point of view of freedom of personality includes freedom of property and freedom of hire. Freedom of property and freedom of hire are important contents of mordern human rights.On rationality of property rights , Shen Jia-ben put forward people self-supporting as his basic argument. Shen Jia-ben advocated freedom of purchasing estate and encouraging trade. He proposed to abolish the old prohibitions that prohibited eight-flag people from purchasing estate outside Beijing and prohibited people from entering mountains to chop wood. Shen Jia-ben's view of encouraging trade included three aspects: rationality of trade, honest and credible trade and freedom of hire. Shen Jia-ben thought that free trade was the way people led their lives by. He also pointed out that honest and credible trade was to the interest of two parts of a contract, and that slavery had to be abolished ,while the system of hire must be advocated.The formation of Shen Jia-ben's civil thought could not be divided from the special social environment that after Opium War Chinese traditional culture had been impacted violently by Western modern civilization, and it was the combination of Shen Jia-ben's deep insight into Chinese traditional legal culture and active absorption of modern western civil thought. Shen Jia-ben's points of view on personality right and property right were in accordance with modern western civil thought which based on principles of equal personality and freedom of property. It was more precious that Shen Jia-ben was able to take advantage of his special status and in a special way to apply his progressive thought to the course of reforming old law and making new law, and therefore made the foundation for modernization of Chinese civil law.