Give full play to the effect of the civil code system to provide direction for national governance
Written on the occasion of the second anniversary of the adoption of the Civil Code
□ Our reporter Zhu Ningning
Looking back on May 28 two years ago, Sun Xianzhong, a member of the Constitution and Law Committee of the 13th National People's Congress, a member of the Chinese Academy of Social Sciences, and a researcher at the Institute of Law, could not hide his excitement.
On that day, the third session of the 13th National People's Congress passed the first law with the word "dictionary" in New China - the Civil Code.
As a deputy to the National People's Congress, Sun Xianzhong witnessed this historic moment in the Great Hall of the People.
From the official launch in March 2015, to the adoption of the General Principles of Civil Law at the Fifth Session of the Twelfth National People's Congress in March 2017, to the adoption of the Civil Code on May 28, 2020, it took more than five years for the Civil Code to be revised.
As one of the five think tanks for the compilation of the Civil Code, the Institute of Law of the Chinese Academy of Social Sciences provides a key structural guarantee for the compilation of the Civil Code.
In order to commemorate this important legislative activity and better implement the Civil Code, the Institute of Law and Private Law Research Center of the Chinese Academy of Social Sciences recently hosted the "Seminar on Commentary and Application of the Civil Code and the Second Anniversary of the Promulgation of the Civil Code".
The Civil Code has opened a new era in the history of the rule of law in China and is of milestone significance.
However, the adoption and implementation of the Civil Code is only the starting point, not the end point.
In the socialist legal system with Chinese characteristics, how to truly give full play to the role of the Civil Code as a fundamental law that solidifies the fundamentals, stabilizes expectations, and benefits the long-term, and how to truly implement the Civil Code, still requires the efforts of all parties.
Deeply understand the scientific logic of the systematization of the civil code
"If you want to implement the Civil Code, you must first study and study the Civil Code." Sun Xianzhong believes that the Civil Code has been implemented for more than a year, and the research on the Civil Code still needs to be strengthened in many aspects.
In Sun Xianzhong's view, the most important thing is to further understand the scientific logic of the systematic construction of the Civil Code.
"The most basic requirement and legislative purpose of the civil code system and scientific logic is to solidly promote social progress through specific institutional arrangements," said Sun Xianzhong.
He also pointed out that it is necessary to further strengthen the understanding of civil rights and put people's rights into practice.
The basic core of civil code legislation is the protection of civil rights. Therefore, it is necessary to have a clear understanding of the construction of the civil rights system.
To clarify the basic issue that property rights can enter the market and personal rights cannot enter the market, it is also necessary to clarify the legal logic of the distinction between the right of domination and the right of claim in the structure of civil rights.
In addition, the issue of relative rights of absolute rights is of great significance to the interpretation of the tort system, and it should be clarified that the basic logical structure of relative rights of absolute rights is the consciousness of the right holder.
At present, the research and study on the special legal person system in the Civil Code is still insufficient, which is also a problem that Sun Xianzhong believes should be paid attention to.
He suggested further understanding the Civil Code's provisions on special legal persons, and promoting the implementation of the Civil Code in accordance with the logic of public law legal persons and other quasi-public law legal persons.
To achieve integrity and innovation in the national governance system
"As the first law with the word 'dictionary' in New China, the meaning and function of the Civil Code is not limited to the summary and improvement of civil laws.
Down to the third edition
Continued from the first edition
It also inevitably points to the national governance system.
"In the view of Chen Xiaojun, vice-chairman of the China Civil Law Research Association and a professor at Guangdong University of Foreign Studies, the importance of the Civil Code is also reflected in its deeper structural value and technical efficacy in China's governance practices. Although the Civil Code ostensibly regulates The autonomy of will of private subjects, but its core is to demarcate the boundaries for the autonomy of public power interference consciousness. In other words, the actual direction of the terms of autonomy of will is the concept of national governance of autonomy, rule of others and rule of man.
"Starting from the General Principles of Civil Law, the civil legislation with the law of rights as its core feature follows the management model of the negative list, and the Civil Code is more upright in this regard. At the same time, in the autonomy of will and state governance, the Civil Code puts the meaning of The norms and models of autonomy are incorporated into the identity relationship, which is the innovation of keeping the center." Chen Xiaojun said.
Another important function of the Civil Code is to provide other legal departments with a directional basis for state governance.
"As the fundamental law of rights, the Civil Code is not limited to civil law including commercial law, but also covers the entire legal system including public law." Chen Xiaojun introduced the "green principle" as an example. The proposed civil law attempt to develop the concept of "lucid waters and lush mountains are invaluable assets" is not only a common adherence to the internal provisions of the Civil Code, but also points to environmental resource legislation and other public laws including social law, demonstrating the importance of the Civil Code in the new era. Environmental attitudes, by virtue of the "code" status of the Civil Code, cover and guide subsequent legislation.
Chen Xiaojun believes that although the Civil Code is not a constitution, the title of "Code" determines its fundamental significance in national governance. It cannot and should not be limited to the field of civil and commercial affairs, but must be included in the overall structure of the socialist legal system. Understand the value of the Civil Code.
When understanding the provisions of the Civil Code, on the one hand, we must follow the technical path of civil and commercial law, and at the same time, we must interpret and comprehend the Civil Code under national governance.
And the analysis of the civil code state governance will certainly promote the innovation of civil law research methods, so as to better serve the construction of a socialist country under the rule of law.
Paying full attention to the basic role of the Civil Code
The Civil Code is an important part of the socialist legal system with Chinese characteristics and a basic law.
So what exactly is fundamental law?
How should the Civil Code play a role in the entire socialist legal system with Chinese characteristics?
These issues should be given great attention.
"The civil legal system stipulated and established by the Civil Code has the guidance of the breadth of adjustment objects, the completeness of content, the integrity of the system, and the value." Tan Qiping, vice president of the China Civil Law Research Association and professor at Southwest University of Political Science and Law, believes that, A series of basic systems stipulated in the Civil Code should be applied not only to the civil field, but also to other legal fields other than the civil field, and become the norms that all legal departments in the entire socialist legal system with Chinese characteristics abide by.
Only in this sense can the status of the basic law of the Civil Code be fully reflected.
He believes that building a socialist rule of law system with Chinese characteristics is not an empty slogan.
If the basic role of the Civil Code is absent, the construction of the socialist legal system with Chinese characteristics will be greatly compromised.
The socialist rule of law system with Chinese characteristics includes a complete legal norm system, an efficient rule of law enforcement system, a strict rule of law supervision system, strong legal guarantees, and a complete system of intra-Party regulations.
Among the five rule of law systems, the Civil Code, as the basic spirit and principle, should be followed accordingly.
Tan Qiping also mentioned the special mission of the current Chinese civil law scholars in the construction of the socialist rule of law system with Chinese characteristics. In his opinion, the Civil Code contains many core spirits and elements of the modern rule of law, which are highly regarded in the Civil Code. concentration and expression.
In a sense, Chinese civil law scholars have a special mission to ensure the implementation of the Civil Code.
This is also a more arduous and important mission for building a socialist rule of law system with Chinese characteristics.
Constructing China's Independent Civil Law Knowledge System
"The promulgation and implementation of the Civil Code marks the formation of our Chinese civil law system. The formation of the Chinese civil law system provides an indispensable institutional premise and a crucial practical basis for the construction of China's independent civil law knowledge system. However, The formation of China's civil law system does not mean that China's civil law knowledge system has been formed." said Wang Yi, vice president of the Civil Law Research Association of the China Law Society and vice president of Renmin University of China.
So, how to construct China's independent civil law knowledge system?
Wang Yi believes that, first of all, don't be arrogant, or you may be blindly xenophobic; secondly, don't belittle yourself, or you will follow what others say.
Wang Yi specifically mentioned the role of legal interpretation.
In his view, the construction of China's independent civil law knowledge system is inseparable from legal interpretation and the proper application of various legal interpretation methods.
"Faced with the same Civil Code, or even the same legal provisions, the same method of legal interpretation is used, but as a result, different conclusions of legal interpretation will be drawn. This is because people always start legal interpretation with different advance judgments. Wang Yi believes that finding and sharing the minimum consensus in the field of legal interpretation is the key to maintaining the meaning and value of legal interpretation.
Discuss from the perspective of interpretation theory, respect these basic consensuses in the field of legal interpretation, and build China's independent civil law knowledge system to have a solid knowledge base.