The Study On The Shi Shangkuan’s Thought Of Civil Law

The Republic of China is a transition period in which China’s legal system is changing from thetraditional legal system into a modern legal system; the academic atmosphere is very relaxed, and all ofthem provide good conditions for the spread of all kinds of legal thoughts in China. Under this kind ofhistorical background, legal scholars study the law from different perspectives and positions and putforward their own different opinions about the status of legal implementation and legal thought, which lay asolid foundation for the study of civil law in the Republic of China.Whether a country’s civil and commercial law develops or not, reflects the development level of thecountry’s law to some extent. Although ancient China begins to draw up statutory law, its main feature isthat the criminal procedure is more important than the procedure for civil. When the country makes thelaws, its indifference to private rights leads to the underdevelopment of civil and commercial law, therefore,the civil and commercial laws are limited in the criminal law. It is at the end of Qing Dynasty that the civiland commercial law is valued; therefore, the civil law of our country also begins to turn to modernization,in which numerous jurists play a key role, and they expound the legal principle and make great contributionto the modernization of civil law of China.During the Republic of China, people were in the distress. On the one hand, China was invaded byWestern Power; on the other hand, it was oppressed by domestic feudal bureaucrats and capitalists. Thissocial background aroused the Chinese people’s national consciousness and civil rights awareness, whichwas the constitutionalism from the perspective of law. Therefore, in the Republic of China, there weremany jurists who studied the constitutionalism, as well as civil law, such as Shi Shangkuan, Hu Changqing,Mei Zhongxie and so on. The object of this paper is Shi Shang kuan, who is an excellent civil jurist inRepublic of China period and has been to study in Japan, Germany, France, and serves as the leadingmembers of Legislative Yuan, Legislative Committee and Group of Five on civil law drafting ofKuomintang Government, and also participates in the compilation of Min Guo Min Fa Dian. In addition tothis, he also compiles six volumes of Min Fa Quan Shu independently; therefore, he is called as “the firstperson of Chinese civil law”. This paper embarks on the society environment background at home and abroad in which the author lives, current situation of Chinese civil law, the effect of the thought of majorjurists’ and foreign jurists at the end of Qing Dynasty and the beginning of Ming Dynasty, explores theforming process the civil law thought of the author, analyzes his profound civil law thought from theperspectives of ideological content, as well as the specific thought scattered in his book, and furtheranalyzes the process in which the main thought of civil law of Shi Shangkuan is sublimated.As one kind of private law, civil law is related with people’s daily life, so its importance isself-evident. The enactment and perfection of civil law is significant for the construction of legalconstruction. Shi Shuangkuan thinks that civil law is the law which formulates the norm of social life, inaddition to this, he also considers that civil law is the foundation of all the laws, which not only plays afundamental role in other private laws, but also the understanding of which is helpful to the understandingof the essence of public law. In the civil law, the law of obligation is the most important. In fact, the profileof law of obligation is the confluence of theories of law of it. Based on this kind of understanding of civillaw, he devotes his whole life to the study of civil law. After almost40years, he compiles the six volumesof Min Fa Quan Shu independently, and finally becomes a famous civil jurist all over the country.This paper discusses the role played by Shi Shangkuan’s civil law thought in the modernization of ourcountry’s civil law, as well as the construction of civil law in Taiwan and Mainland China from theperspectives of the learning level and directive insignificance of Shi Sangkuan’s civil law thought, findsthat Shi Shangkuan not only pays attention to the current situation of society, but also strongly fights backthe problems caused by legal reform and is of great inspiration to the reality. His civil law thought becomesthe bridge which joints Chinese traditional science of civil law and modernistic science of civil law andserves as a connection link between the communications the past and the future. Therefore, it is meaningfulto hackle, excavate Shi Shangkuan’s civil law thought and apply its use to the modernization constructionof civil law.