On Identification Of Norm Nature Of "Shall" Provisions In Civil Law

It contains a lot of “shall” provisions in our existing civil law system.How to define the nature of the related norms is the pre-condition to judge the effectiveness of the relevant civil behavior.Whether do the provisions containing “shall” express theoretically recognized enforcement sense in traditional law indisputably or not,is a question of considerable discussion value.This problem is just a micro ripple in the pond of the Allocation Theory of the Norms of Civil Law;however,it is of great significance and shall not be ignored because it reflects a lot of civil meanings.Nature recognition of the related norms determines the coordination and changing of the interest pattern of the civil subjects,so this issue can be attributed as a question of value judgment in the view of civil law.It is requested to use the Means of Purpose Interpretation and the Means of Interest Analysis integrated,on the basis of proper use of the Means of Semantic Analysis,taking two substantive demonstration rules of value judgment in civil law as the guide.It is necessary to analyze specific issues with specific means,to judge properly whether the related norms as advocacy norms,arbitrary norms,norms to award the third party certain kind of authority,or peremptory norms,attached effective demonstrations to meet the self-consistent logic of civil law,on the premise of implement of the spirit of the autonomy of private law.It is not allowed to take the word of “shall” too literally;to take the provisions which contain the word of “shall” as peremptory norms across the board approach,otherwise,it will do severe damage to the spirit of Autonomy of Private Law,offend the basic civil value of the civil law.Considering the defects of the expression of related provisions,the legislative organs should create diverse characters as normative warning,to tell differences between “shall” and “have to”,to replace “shall not” with “not allowed”.Only in this way can the civil law bring the normative value function into play completely,to defend its clarity and stability.