| At present,the establishment of the civil code is an important part in the construction of socialist rule of law in China,and whether the success of civil code can be formulated is whether the relationship between legal theory and civil customs can be correctly handled.Recalling the history is to better look to the future,recalling the history of the development of civil law in modern times,you can find several important contents since the late Qing Dynasty law reform,such as the two civil and commercial customs investigations,the "Draft Civil Law of the Qing Dynasty",the "Draft Civil law of the Republic of China" and the "Civil Code of the Republic of China".Especially in the "Civil Code of the Republic of China" promulgated,Which is a significant improvement over the previous two drafts legislation,regardless of space structure or the attitude for civil customs,as we provide a reference to the development of the Civil Code.Due to limited space and the author's limited ability,only the analysis of the real right of each law as an example,this thesis can clearly recognize that the former two legislations were unsuccessful by analyzing the three civil laws enacted in modern China.the real right of the " Draft Civil Law of the Qing Dynasty" to make full reference to Japanese law,ignoring China's national condition and civil customs,it is serious out of line of Chinese society.Although the use of civil customs in the “draft of the Civil Law of the Republic of China”,for example,is a typical example of the incorporation of the pawn in traditional customs,its quote is less frequent and there are more between the legal provisions Conflict,therefore,it is also a more incomplete imperfect draft.On the basis of drawing up the experience of the two previous drafts,the “Civil Code of the Republic of China · Property Series” is more perfect than the“Draft Civil Law of the Qing Dynasty” and the "Draft Civil law of the Republic of China",especially the reference to the civil customs,so that the draft has a certain applicability,the thesis will focus on the analysis of the influence of civil customs on the “Civil Code of the Republic of China · Property Series”,in the study,the author find out that the "Civil Code of the Republic of China " is not perfect,and its lack of place,that is the introduction of a large number of Western theories,in accordance with the ideal model of industrial and commercial society to design the law,there is a certain degree of advance for the level of China's economic and social development,which is the moment we need to avoid the development of the Civil Code.The thesis is divided into five chapters,the first chapter is the introduction section,this part mainly introduces the reasons,significance,present situation,method and innovation of the research.The second chapter is on the civil customs and two civil and commercial customs investigations of the basic theoretical analysis.The third chapter is a simple analysis of the role of civil customs in the “draft Civil Law of the Qing Dynasty” and the “draft Civil Law of the Republic of China”,in order to show that the two laws of the draft legislation gains and losses.The fourth chapter mainly discusses the legislative background and compilation process of the “Civil Code of the Republic of China”.The fifth chapter is based on the customs of property rights of the "civil customs of investigation report" and the "Civil Code of the Republic of China · Property Series " for the classification of legal texts,to come to the "Civil Code of the Republic of China · Property Series " in the legislative process the influence of civil customs on the size of each part,at the same time,in the face of complex and diverse civil customs,how to make a choice in the legislation,which for future legislation to provide experience and lessons.In the conclusion,the author draws the conclusion that the "Civil Code of Property of the Republic of China ·Property Series " is more than that of the "draft Civil Law of the Qing Dynasty" and the "draft Civil Law of the Republic of China" customs and civil customs have a far-reaching influence on it,but compared to the influence of Western theory on the "Civil Code of the Republic of China",the proportion of civil customs is not enough.In short,the "Civil Code of the Republic of China · Property Series" has both its success,but also has its own shortcomings,which for the current the "property law of the People's Republic of China" and the drafting of the Civil Code provides experience and lessons learned. |
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