On The Source Of Civil Law In China

The legal source of civil law is the legal source of civil law.First of all,the superordinate concept of the source of civil law is the source of law,so the basic theory of the source of civil law is the source of law.Based on the theory of legal origin of judicial position,this paper defines the concept of civil law origin in China.It can be found that the origin of civil law and the source of civil law are not two identical concepts,which should be distinguished in the use of academic circles.Secondly,the General Principles of Civil Law has been promulgated,which will exist as the general principles of our civil code being formulated.It is generally believed that Article 10 of the General Principles of Civil Law is the source clause of China's civil law.The content of this clause shows the system,structure,types and application rank of the source of China's civil law.Because of the principle,abstraction and fuzziness of the clause itself,I try to analyse the meaning of its specific content theoretically,analyze the scope of "law" as the source of civil law in China,discuss the conditions that "custom" should have as the source of civil law in China,and the problems that courts should pay attention to when applying "custom",as well as "law" and "law".“ The applicable rank of habits expounds their own views.Finally,theoretically speaking,China's civil law source system should have the function of guaranteeing the stability and moderate openness of China's civil code.Therefore,I try to explore its logical self-sufficiency.On the basis of defining the concept of civil law source and analyzing the source clauses of the General Principles of Civil Law,I have a great controversy in the academic circles of China about "jurisprudence","judicial interpretation" and "judicial interpretation".Whether guiding cases and national policies can constitute part of the source system of civil law in China is analyzed and demonstrated.It is pointed out that "jurisprudence" should be added as the direct source of civil law in China,so as to construct the "three-element" source structure and system of the General Principles of Civil Law with the content of "law,custom and jurisprudence";at the same time,through "judicial interpretation" and "guidance".Through the value analysis and empirical analysis of cases,the author believes that they should be regarded as indirect sources of law in China's civil law.Through the legal analysis of "national policy",it is pointed out that they are no longer sources of law in China's civil law.