Analysis On "Gong Xiantian Incident"

The first great unconstitutional debate of legislation in the history of New China, in which all the people were involved, was known as "Gong Xiantian Incident". It expanded around the "constitutional" and "unconstitutional" debate in "the Property Law (Draft)" (hereinafter referred to as "Draft"). Research on "Gong Xiantian Incident" is meant to help us make a deep consideration on the relationship between the Civil Law and the Constitution, because the incident fully demonstrates the dynamic relationship between the Civil Law and the Constitution. Debates in "Gong Xiantian Incident" include three aspects: "debate of protection principles "," debate of the Constitutional provisions' basis and "debate of the relationship between 'Property Law' and the loss of State-owned assets". The first aspect reflects the constitutional dispute between the civil legislation and the Constitution in the dimension of a country's legal system; the second reflects the nature of the constitutional dispute between the civil legislation and the Constitution, i.e. in the transitional period of China, changes in the structure of society has brought about arguments between the academic status of the Civil Law and the Constitution. The third reflects that the relationship between the Civil Law and the Constitution is not in a break, but in a spiritual agreement. Through studying "Gong Xiantian Incident," this paper fully demonstrated the dynamic relationship between the Civil Law and the Constitution.This paper is divided into three parts. In the first part, the key problem in the constitutional debate was made clear, i.e. whether or not the protection principles in both the "Draft" and the Constitution were in accordance with each other. In the debate, there is overlapping of concepts, and some scholars have totally different opinions and some even convert their positions. On the one hand, these phenomena promoted academic and cultural prosperity; on the other hand, they reflect that opinions are divided on the issues of protection principles. The reason is that scholars of the Civil Law and the Constitution start from presuppositions of their own disciplines respectively, hence the emergence of these phenomena. So, the author holds the view that the starting point for the study of the problem is to establish a common basis. Studying from a historical perspective is not only a good way to solve the problem, but also it is based on some common knowledge. Seeing the relationship of the Constitution and Civil Law from the point of view of the legislative history, it can be found that the development track of property protection principles in the Constitution and the Civil Law legislation is the same. The second part is on the consideration of the reasons for the Constitution's fundamental status in our country, "debate of the Constitutional provisions' basis" in "Gong Xiantian Incident" is arguments between the academic status of the Civil Law and the Constitution in the transitional period of China in nature, i.e. arguments of whether "Constitutional Fundamental" or "Civil Law fundamental". The legislation should be in accordance with the Constitution, and it shall not be inconsistent with the Constitution. This is the jurisprudence of the legislative principles recognized. As to this problem, both sides debate heatedly about whether "according to the Constitution" should be written in the "draft". From the identity of the main body of the Constitution and legislation, Scholars of the Civil Law concluded that the Constitution does not have regulative meaning to the law. This revealed that they want to make the Civil Law get rid of the control of the Constitution and also revealed their intention to overthrow the modern legal system. On the basis of analyze "Civil Law fundamental", the author explores the reasons for the fundamental status of the Constitution from the perspective of the history of the constitutional system in western countries.In the third part, the author studies the relationship between the Constitution and the Civil Law through exploring the relationship between the Property Law and the loss of State-owned assets. Professor Gong Xiantian reversed the relationship between personal property and state property. The loss of State-owned assets was not caused by the Property Law. On the contrary, the state's protection of private property can promote the preservation and increase of the state-owned assets. Protection of private property can further emancipate the vitality of individuals and display the vitality of the state-owned assets. The core of modern constitution is concerning about the individuals, and emphasizing individualism. Therefore, the Constitution and the Civil Law are in consistent in the spiritual pursuit with each other.Professor Gong Xiantian started from the social reality in order to make analysis and evaluation of the issue. However, the reality can not be confined to the current time and space, and should be put into the broader perspective in history. Talking about things in themselves will end in a quarrel, and no one can convince the other. This paper considered "Gong Xiantian Incident" from a historical point of view. Through the analysis of this incident, it displayed the dynamic relationship between the Constitution and the Civil Law.