The Struggle For The "chinese Characteristics" Of The Civil Code

For most lawyers on civil law, a code which is huge and grant would be a most remorseless legal seeking. The trend of codification in civil law countries originates from Bavarian code on private law in 1756, and remains till today. Scholars and legislators in China, with great belief and passion to civil code, are urging one when time comes to 21^st century. All of them are in the hope of that the civil code in china, like Code Napoleon promulgated in France and Civil Law Code introduced in Germany, will be another milestone with symbol of the new age; and all of them really hope that China can play its own role in this trend of codification. The word to establish a civil code in China becomes popular and the mainstream during the construction of China's constitutionality. Although there are different opinions when argumentation, it is only some reasonable doubt on whether conditions are right for civil code but not against making the code. And these doubts are no longer the main problem after the enactment and enforcement of Real Right Law in China. Author would not stick on this issue, either, while she has the definite conception that to make civil code is an important task in the modernization of China's civil law system.The author begins with an issue that what kind of civil code china needs, and this should be thought of by not only students on law but also scholars on civil law and legislator. A sentence, 'Civil law is about people's daily life; a civil code is the sum-up and reflection of people's way of life in one country; it represents one folk's degree of culture; and it presents one country's material and spiritual civilization; only when it bases on our own experience, and only when it contains our unique annotation and wisdom, the civil code could be a long live one and take its own place in the world', by Professor Wang Liming is the best answer to the issue mentioned above. All data author collected have cited this sentence. Author then pays attention on how to realize all requirements Pro. Wang has mentioned.It is so pity that an exact answer is not found. It is possible author meet some derivative problems which are hard to answer; or it is simply because author didn't find. But in author's own mind, civil custom is the key words. Maybe a single phrase can not be answer fitting for all the questions above, but among local resources of every law, custom is abundant and earthy enough to be an important source of law.The paper is comprised of five parts except the introduction. The first part biefly reviews the procedure of the legislation about several improtant civil codes of the continental law system in recent years, it also makes an historical and comparative investigation into making the civil codes. Despite the rationalism is the theoretic power of codification the civil law movement, the conceptual strenth rejects the effectiveness of the civil custom, and even though in modern legislation of the European civil code, it had been had ignorance or ambiguous to the civil custom. By depicting the history of the civil code, the paper clearly shows the great importance of the unwritten law made in enacting the civil code.The second part makes furthur expandation to the "Historical narration" of the first part. It depicts the procedure of legislating the civil code in our country. In the course of the modernization of the civil law, the paper evaluates the embarrassed position which the civil custom confronted in the theoretic utterance of the civil law. We could see that at the beginning of the twentith century in China, the civil custom had been the vital domestic resourse of legislating the civil code by the lawmakers. Because of many reasons, the validation of legislating is not quite so distinct.However, the scholars abandoned these theories completely in the modern utterance of the civil law. It is clearly to see the repressed civil code in this part by analyzing the history, the legislation and the heated debate over the civil code in present days.The paper not noly reveals the phenomenon, but also shows the historic misunderstanding after the rollercoast ride destiny through perspecting the reasons of which deprecite the civil custom. Only we cognize the misunderstanding can we eliminate the historical prejudice over the modernization of Chinese civil law,and give the respect to the civil custom which should have owned.The third part focus more on the practice rather than the theory. The peripherization of the civil custom were marked "Mosaic" cruelly. It is a problem that whether the research on the civil law "alleviated the burden" successfully or "lost" unfortunetly. Is it really successful that the great effort on the substitution of Chinese civil law system to the folk custom? People on the rational norm of the civil code take measures to the despised and opressed attitude, is it reasonable and effective enough? We try to use the research approaches like sociology and anthropology, with the written emprical study that could be found as much as possible, to demonstrate the position of the civil custom in the relationship of implementing the domestic civil law in nowadays. At the end of this part ,to illustrate the point that the civil custom plays a vital role in the utterance of today's civil legal system, the paper provide a contrast and investigation between the theoretical exploration of the civil custom and the practical way it behaved. This part also indicates that the civil custom still showed itself and make effect on the civil dispute in Chinese real culture, although it is depreciated seriously in morden civil law theory. The real existance and function of the civil warned us that the margin of the civil custom exist in the legislation and utilization of the civil code would be a great loss of the legislation in our country.The contrast of the theory and practice keep us from questioning, since China's reform and opening up to the outside world, the social structure have experienced great changes. Whether the civil custom would be considered as the domestic resource, how could it be used under such circumstance? Being one of the domestic resources, did the civil custom transcend or return back to the traditional civil law? The forth part focuses on how does the civil custom comes into the lawmaker's view, and how does it pour into the blood and one may wonder what kind of driving force does the civil code make what we are waiting for heartedly.The study and interpretation is forever open-ended and unperfectionism. In the fifth section, this paper will make a plain discussing on how the civil custom gets into the view of the lawmaker. Maybe this paper is not quite so consummate, it should have the actual effect. Therefore, this section is the only last part to research over the final power of the civil custom, maybe it is not so complete and perfect, but it indeed has the practical significance to the civil code and the research of the science of the civil law.