A Study On Legislative Theory Of Friedrich Carl Von Savigny

With the increasing academic voice of Chinese civil code and the deepening research of civil law, our attention on legislation has certain practical significance. Since the establishment of the People’s Republic of China, our country has been exploring a civil legislation that suits ourselves. In the early period of new China, we were confronted with tasks of recovering national economy, transforming socialism and carrying out large-scale economic development. Our country paid much attention to civil legislation, but we didn’t have law models to learn from in the road of recovering national economy and adhering to socialism as we held a hostile attitude towards capitalism. So we had to depend on ourselves to explore under such tough circumstances. In order to adjust complicated socio-economic relations, a series of regulations were successively enacted, such as Agrarian Reform Law of the People’s Republic of China, Treatment Methods of New Rural Debts, Provisional Regulations on Private Enterprises, etc.Thereafter, the enactment of laws was at a deadlock as the whole country’s construction was impacted by Cultural Revolution. Until the Third Plenary Session of the 11 th Central Committee of CPC, civil legislation was put on the agenda again. During the initial stage of formulating civil law, as we didn’t have traditional civil legislation documents for reference, we anchored our hope on other countries that had successfully made civil codes to learn and bring in their civil codes and civil law systems so that we could formulate our own civil law regulations. We didn’t directly enact Chinese civil code but promulgated General Principles of the Civil Law in 1986, thus unifying regulations of basic issues in the civil field and providing criteria for judicial judgment. The civil law system formulated under such a background was mainly brought in from German mode. But China had been proposing to establish its own Chinese law system, then such issues arose: whether the German mode is advisable or not; where is the system importance reflected in; whether the system uniqueness is really necessary or not. All these issues will be investigated in this paper. The paper studies the legal thoughts of the German jurist Savigny in the 19 th century from the point of legislation and then lays emphasis on summarizing Savigny’s legislation thoughts to explore its contents that have a guiding significance on Chinese civil law.This paper mainly starts from the historical background of German society in 19 th century and studies the theory background of forming Savigny’s legislation thoughts to analyze the causes of his thoughts. Savigny insisted in national spirit theory and thought that law originated from the human society and national habits formed in history. Based on this, historical school of law appeared on the scene and then the confrontation between positivism and rationalism started. But what surprised the later generations is that Savigny’s persistence in Roman law seems to contradict with his national spirit theory. As a Teuton, he took the primary source of Roman law instead of Teutonic law as study object. The paper will dissect this point from Savigny’s historical background and give rational explanations. At the same time, the writer noticed in sourcing references that though only one volume was translated into Chinese version among the eight volumes of Contemporary Roman Law System which are Savigny’s later writings, it’s of great guiding significance to the paper. It is the most direct evidence of Savigny’s later legislation thoughts and is beneficial to get an intuitive understanding of his legislation thoughts transformation. Another point should also be noticed that the Roman law system he established is not a direct organization of previous Roman law works but a process of reconstruction. He applied various law rules, regulations and methods explained in Statute to arrange its origin and statutory law and pay attention to the correlation among various chapters, thus completing the systematic construction.In the process of creating law system, Savigny laid special emphasis on the function of jurists and thought that only jurists with certain capacity could undertake the responsibility. He was object to the French Civil Code formulated by Napoleon government as this code was contrary to his legislation thoughts both in the formulation background and formulation process and result. This paper will expound Savigny’s basic theory of code formulation from his requirements of code formulating process and the necessary qualities of jurists.Through the study of Savigny’s legislation thoughts, the paper will also make a systematic evaluation of his legislation thoughts. Savigny made a great contribution to the establishment of systematic civil law which promoted jurisprudence to move toward to be scientific, making jurisprudence a real science and the legal profession more professional.Finally, the paper will explore Chinese civil legislation activity according to Savigny’s legislation thoughts and search for the instructive significance on Chinese civil legislation by studying his thoughts.