Study On The Categorization Of Codification

Codification is a legislative and technical activity targeted at statutory law.Codifier can't evade loopholes of the statutory law by codification,where the loopholes of statutory loopholes exist,judges will exercise their discretion,codifier can determine the characteristics of the code through codification,which has indirect influence on the exercise of judicial discretion.Therefore,codex compilers usually design corresponding system for judicial discretion.Studying on the categorization of codification will reveal different intentions behind the codification,which has a positive significance to the dispose of the relationship between the codification and the judicial discretion.Taking the relationship between the codification and the existing laws as the standard,and combining with the functions of the codification itself,codification can be divided into three types.This paper mainly focuses on the closed codification and the open codification.The paradigms compiled by the closed codification includes the "Prussian General Law " and the " French Civil Code ".It is a legislative practice conducted under the guidance of absolute cognosciblism.It aims to replace the existing law with the code,which will become the only basis for the judgement.The closure of this kind of codification is achieved through the pursuit of accuracy,conciseness,and clarity of Codex language and external system arrangements.It embodies the codifier's intention to impose absolute limits on the judicial discretion.Some new developments have emerged in economy,culture and other aspects,as a result,the closed codification has compiled to the open codification.The paradigms compiled by the open codification include the "German Civil Code","Italian Civil Code"and "Swiss Civil Code" and other codes that appeared in the period of transitional or monopolistic capitalism.Open codification tries to achieve "rationalization" or"rationalization" of the existing legal order through the codification activities.This legal order not only contains statutory law but also includes other forms of law.There are two ways to achieve the openness of the codification:the setting of general terms,and the diversification of legal sources system.It embodies the codifier's intention to impose relative limits on the judicial discretion.As a technical method,codification has its limitations,and the resulting codes can also be flawed,even the legal interpretation methods cannot compensate for this deficiency.Open codification became an inevitable choice,the "setting of general terms"refers to the substantive and internal aspect of codification,to prevent judges from abusing discretion,subjective guidance is the only way;"Diversifying the legal source system" involves the formal aspect of codification.It has the predictability of means and procedures and can be measured by objective criteria.According to this,the regulation of judicial discretion can be realized through objective system design.It can be seen that the latter method is more reliable in order to limit judicial discretion.Due to the constraints of social conditions and the impact of guiding ideology,China's civil codification can be seen as open codification,which emphasizes the substantive meaning of codification.It adopts both the "setting general terms" and the "the diversification of legal sources system",There are problems with both approaches.Redundant clauses should be removed in the next phase of the codification of Civil Law,at the same time,according to reality needs,we should make the most appropriate stipulations on legal sources other than statutory law and custom.