On The Protection Of Human Rights In The Compilation Of China's Civil Law Code

Under the political push,our country is embarking on the fifth compilation of civil code in the history of New China.How to protect the human rights in the compilation of the recent Civil Code is a question that legislators must face.The civil code of our country is in the transition between modern civil law and contemporary civil law.It is particularly important to establish human care as the basic value of Chinese civil code compilation based on the establishment of the highest order of the country's political life.Therefore,the codification of civil code At the formal level,the solution to human rights protection should be embedded through exquisite legislative techniques.At the substantive level,the human rights values should be eventually implemented through infiltration of human rights and civil judgments.Only in this way can China's civil code have a historical contribution and have a " Half-constitution " status.This article takes the protection of human rights as the starting point,takes the people as the center in the civil law.The Marriage & Family volume and Succession volume,because of their strong ethical nature and the limited ability of the author,are not included in the research scope of this article,mainly from the scope of property law.The Protection of Human rights in the codification of civil law are expounded,with a view to contributing to the promotion of human rights awareness in the codification of the civil code.This article aims at the compilation of civil code,intends to discuss the issue of human rights protection in the compilation of China's civil code from the following aspects.The first part,based on the civil code of western civil law system,has a profound human rights foundation based on the ideas and practices of human rights protection in the historical civil law system civil code.The civil law codification activity of the civil law system is centered on the individual rights and concerns the position of people in secular life.The civil code has constitutional status in ordinary life.Modern civil law thought mainly originated from Justinian's compilation of Roman private law.At the same time,based on the hypothesis of economic man and rational man in classical economics,it gives abstract legal personality to all people,destroys the personal attachment of property under feudal system,establishes the dominance of the center of property law,equates wealth with human ethics,and greatly stimulates the accumulation of wealth in capitalist society.From the abstract legal personality to the specific personality,the public power has gradually infiltrated into the private law for the sake of economic weakness and the general interests of the society.It restricts the horizontal freedom of contract and ownership,To protect specific people.The second part analyzes the main problems existing in the codification of civil code and the fifth codification of civil code in the history of New China,and analyzes that the standpoint is mainly based on human rights.The first and second civil code compilation activities in the history of New China exist such phenomena,the promotion of super-individualist state control over the economy,the denial of personal interests and market competition mechanisms,the exclusion and suppression of lusts and the production of social wealth on the basis of a comprehensive public ownership.The third and fourth civil code compilation activities gradually recognized the legitimacy of private law interests,introduced the mechanism of market competition and confirmed the legal expression of individual rights from legal rights,but were caught in the modern crisis of civil law,based on the ownership and freedom of contract economic freedom leads to human slavery and oppression,so the public power should reasonably regulate the economic order.In the discussion of the fifth codification of civil code,the disregard of public authority on the legal intervention of civil activities and the significance of personality and property were neglected.In the third part,under the background of the privatization of public power and the trend of private laws publicized,it is necessary to probe into the construction of the human rights theory of our country's civil code from the tradition of the dual division of the public law and private law and the autonomy of private law.Intrusion,constitutional rights as the carrier of human rights is no longer confined to the country,but extended to private law activities.The fourth part discusses the human rights safeguard mechanism in the compilation of our country's civil code.Under the premise of safeguarding the autonomy of private law,through the general introduction of the referral clause,the civil judge is given the right to balance the interests in the specific judgment,reconciles the autonomy of state control and private law contradictions and conflicts,and undertake the heavy responsibility of safeguarding human rights.In the General Provisions of Civil Law,referral clauses are set up to deal with conflicts between constitutional order and private law.In the Property Law,the referral clause is set to resolve the conflict between human rights and property rights,balance the public interest and private interests.In the Contract Law,the referral clause is set to reconcile the state control and private law autonomy.In the Tort Law,tort and infringement as a referral clause,with a view to providing victims with comprehensive protection.