The Function Reorientation Of Civil Capacity System Under The Vision Of Bounded Rationality

The civil capacity system we are learning currently formed from Pandekten School in modern society. And its ideological foundation is rationalism and liberalism, which is different from the relationship doctrine and identity doctrine in Roman private law.200years has passed, the modern system of civil capacity remained essentially unchanged. The act capacity system of rationalism is still at the core and the civil subjects adjust the allocation of rights and obligations according to the autonomy and the freedom of contract. But the rights capacity system is in the virtual position due to the realization of equality for all. With the economics put forward the bounded rationality theory, as well as the increasing protected status quo of the actual interests for the vulnerable groups in society, it’s essential to rethink the modern civil capacity system on the basis of rationalism. The destructive effects of bounded rationality theory to the modern rationalism civil theories and systems are great, but it has not yet attracted the attention of China’s civil law scholars. The purpose of this paper is to introduce the theory of bounded rationality and its impact to the modern civil capacity system, to promote people to think about the rational basis of the modern civil theories and institutions.This paper is divided into four parts. Studying from the source of civil capacity system, discusses the impact of bounded rationality on the civil capacity system and other related civil theories. Focus on re-positioning the function of the capacity system of rights and act under the vision of bounded rationality.The first part is a general theory of the civil capacity system, into three chapters. This section is a theoretical starting point of this study, basing on the capacity system of rights and act, to do a brief overview of the generation, development and process of the civil capacity system. In Roman law, the system of personality from which the rights capacity system originates is at the core, and capacity system of act only has a small amount of scattered provisions, which exists only for the maintenance of the personality system of identity ranking doctrine. With the establishment of modern rationalism civil subject system, the capacity of act achieved an important role in the resource allocation and adjustment of rights and obligations. But the realization of equality-power made capability system of rights lose its assigned meaning of rights and obligations, becoming into the value flag of publicizing equality.The second part is the research background, into two chapters. On combing the process of the rise, development and justification of the bounded rationality theory, emphasizes its influence to the legal development, through explaining the debating between the behavioral law and economists and the rational law and economists. Since Simon proposed the concept of bounded rationality in managerial economics, and its development and improvement by the game of economic theory, until behavioral economics’testing, the impact of bounded rationality continues to expand, especially the challenge to the rational choice economics. Behavioral law and economics as a theoretical doctrine, whether to set up or not, the theory’s impact to the legal development has to be accepted by the traditional law and economists.The third part is based on the main core point of the bounded rationality theory, expounding its specific impact on modern civil capacity system and other related civil theories. The rise of the bounded rationality theory destroyed the modern civil subject of rational person hypothesis. So the capacity system of act which is the mainly representation of the rationalism spirit in modern civil law loses the basis of its existence. At the same time, with the social development, the abstract equality established by the capacity system of rights can not resolve the civil subjects’facto inequality. The rights of vulnerable groups are needed to be protected urgently. With the transition of the modern civil law concept, the validity of the autonomy of the will and freedom of contract which are based on the presence of the act capacity system was questioned.The fourth part is the conclusion of this article. Under the background of the civil subjects" bounded rationality and the actual growing inequality, the equality proclaimed by the rights capacity system and the freedom represented by the act capacity system have to make the appropriate changes and adjustments. Be the continuation of the basic framework of the traditional civil capacity system, with the help of legal patriarchal mode. That means the act capacity system remains the core position, based primarily on the civil subject’s autonomy and freedom of contract. And at the same time, the rights capacity system which characterizes the identity is also as an important basis of the allocation of rights and obligations. So the two can play a role in the modern civil subject system together. About liability, the feasibility of determining the fault by the capacity of liability has been narrowed, and the national mandatory allocation of responsibility has been strengthened. Only in some related specific systems, treat the responsibility ability as a factor to measure the fault and diminish the responsibility, incorporated into the judicial discretion vision to realize the function of relief for victims.