The New Civil Code Of China, The Second Draft Study

"Although Dynasty Zhou turned old, she insisted on reforming the institution." To enact a Civil Code that is sound, scientific, and of great importance in the history of civil law, is a lofty goal of Chinese nation. Because only such a Civil Code can stand for the civilization and the capability of the nation. From October 1, 1949, the founding of the PRC, the National People's Congress has planned to enact a Civil Code four times. It is no doubt that the forth time of drafting Civil Code excites all the people who are hoping the promulgation of the Code. The promulgation of Property Law of the People's Republic of China (2007) makes us believe that the Civil Code is in the near future. Looking back and reviewing the first and second times of drafting Civil Code can not only fill the vacancy of the civil research on the area in China, but also embody the importance in research and reality itself.The Paper is divided in four parts:Part One: the "Historical Coordinate" of the First and the Second Drafting of the Civil Code. The purpose of this part is to define the history of the first and the second drafts of the Civil Code. It is the precondition for deeply researching the first and the second drafting of the Civil Code. Because the civil law in ancient China was poor in research, there was no Civil Code in the nation. The Civil Law Draft of Qing empire is the first civil law draft in China. The Civil Code of Republic of China is first civil code in China. From the founding of the PRC till now, the National People's Congress has planned to enact a Civil Code four times. The first drafting of the Civil Code began and stopped in the "destroy and establish age", and the second one began and stopped in the "stagnate and ruin age". The disruption of the civil law tradition of China has no doubt impacted the first and the second drafting of the Civil Code deeply.Part Two: the historical Environment of the First and the Second Drafting of the Civil Code in New China. This part is to show the historical environment of the First and the Second Drafting of the Civil Code in New China. The first drafting began in 1954 and stopped in 1957. The second drafting began in 1962 because of Chairman Mao's instruction, and stopped in 1964.Part Three: Macro Inspections of the First and the Second Drafting of the Civil Code in New China. The system of the first Civil Code draft is the result of learning and succeeding the pattern of the Russian Civil Code (1922). We should follow the lead of the first draft of the Civil Code of new China, and set General Provisions in the Obligation Law of the future Civil Code, which include the common terms of the law.The system of the second Civil Code draft is a new pattern, because the drafters tried to free themselves from the influence of the Russian Civil Code, and make a clean break with the capitalism civil law. The second Civil Code draft is in fact a good "Negative material" for nowadays' civil law research that we should not forget. Under the guidance of the thoughts of "Taking the Class-Struggle as the Guiding Principle", the second Civil Code drafting in fact was the client of politics. Through the nature and idea of civil law, we can find that the draft completely broke away from the idea that "private right is sacred" and the autonomy of private law.Part Four: Inspections of Several Micro points of the First and the Second Drafting of the Civil Code in New China.In the first Civil Code drafting, the adjustment target of civil law was defined as "property relation and personal relation". And there were two controversy Focuses: the first one was "what is the nature of property relation", the second one was "whether civil law adjusts human behaviors". In the second Civil Code drafting, the adjustment target of civil law was defined as "economic relation", which emerged the idea of "big civil law" and the idea of "small civil law". Through the above controversies, we can see the poor level of civil law research in the age. The premise of the idea that state property should be under special protection is that "we are living in socialist country, in order to protect the people's interest, we must put state property under special protection". Specific performance of liabilities means the debtor must perform the liabilities strictly according to the law and the contract. The principle of specific performance of liabilities is a universal principle in socialist countries, which originated from the ideas of Marxism.