Wang Yi, Vice President of the National People s Congress: How to reason with civil law?

He is currently a member of the Standing Committee of the Party Committee and Vice President of Chinese Renmin University. "Changjiang Scholars" Distinguished Professor of the Ministry of Education, enjoy special allowances.

2023 Rule of Law Person of the Year Wang Yi

Reasons for the award.

He grew up in the era when China's rule of law was thriving, actively participated in national civil legislation, and made many theoretical innovations and contributions. The promulgation of the Civil Code has been the dream of several generations of civil law scholars, and in the end, he participated in this great project as a member of the leading group of the Civil Code Codification Project of the China Law Society, witnessing China's ushering in the "Civil Code Era". Between the arduous study of civil law and the complex real world, he continued to explain the spirit of legislation to the public with a broad vision and popular language, and made due contributions to the construction of the rule of law in China.

His academic career began at a critical juncture in China's transition from a planned economy to a market economy, and legislative work in the field of civil and commercial rule of law was put on the fast track. From the drafting of the contract law, which was ahead of social development, to the compilation of the civil code, which must respond to the questions of the times, Wang Yi has participated in and witnessed the transformation of Chinese civil law from the "era of axioms" to the "age of truth".

Wang Yi's awareness of the problem also comes from the practice of legal drafting. How can civil law be effectively reasonable?What are the rules for academic debate?In the face of the "orientations, preconceptions, and preferences" encapsulated in everyone's mind by the historical process, how can the academic community reach a consensus through understanding, instead of allowing the battle of views to evolve into a battle of emotions?

Repeat a dream and you can turn it into reality. Nietzsche's assertion has become a treasured proverb for Wang Yi. For Wang Yi, that dream is also simple: let civil law be reasonable.

Young people who were chosen

At the end of 1993, Wang Yi and his brother Yang Minggang were called to the reference room of the Law School of Jilin University.

The just-concluded Third Plenary Session of the 14th CPC Central Committee adopted the "Decision of the Communist Party of China on Several Issues Concerning the Establishment of a Socialist Market Economic System", marking the formal transformation of China's economy into a socialist market economy. In the reference room, the tutor Cui Jianyuan told the two early 20-year-old students with a master's degree in civil and commercial law that China was about to start the drafting of the contract law, and experts and scholars from 12 domestic law schools and scientific research institutions were entrusted to complete the draft of the contract law expert proposal. Cui Jianyuan undertook the drafting of two chapters: "Rescission and Termination of Contract" and "Termination of Contract". To this end, the Legislative Affairs Committee of the Standing Committee of the National People's Congress allocated him a fund of 1,200 yuan to hire two assistants, and after three months of enrollment, Wang Yi was selected by the tutor.

The choice of law is the result of parents' "planned economy" for their children. There are three boys in this family of teachers in Nanyang, Henan Province, both parents are middle school teachers, and the three brothers have already been set a direction when they are very young - the old university science and engineering, the second one studies liberal arts, and the third one studies foreign languages. The three brothers were admitted to the university according to the division of labor set by their parents, and in 1989, Wang Yi was admitted to Zhengzhou University, majoring in economic law.

Fortunately, "being planned" did not hinder the natural generation of interest. In the civil law major class, Luo Xiaojing, a young teacher who has just graduated with a master's degree, is good at using the anecdotes and academic views of the older generation of civil law scholars such as Tong Rou, Xie Huaiyan, Wang Jiafu, Jiang Ping, and Wei Zhenying to narrow the distance between students and difficult theories. Not only that, Luo Xiaojing's solid civil law skills, clear thinking, and good Mandarin made Wang Yi deeply impressed by the class. At the end of the semester, he got the highest grade in his grade.

In the end, I decided to apply for a master's degree in civil and commercial law at Jilin University, but it was because of a reply letter from Zhang Wenxian, a professor at the Law School of Jilin University. Young undergraduates, trapped by the more than 130 views given by the academic circles on "what is economic law", happened to see the book "Contemporary Western Legal Thought", and were attracted by the smooth, clear and concise writing, so they wrote to the author Zhang Wenxian to ask for advice on how to learn economic law well. The author, who had already become famous all over the world, quickly replied: If you want to study economic law well, you must study institutional economics, jurisprudence, and civil law well. In particular, he emphasized the fundamental position of civil law in the entire body of legal knowledge. Wang Yi recalled. This deepened his hazy affinity for civil law.

However, being suddenly brought to the front line of the battlefield where the law was drafted, the sense of closeness was quickly dispelled by the pressure mixed with excitement, and Wang Yi doubted whether his knowledge accumulation could match the work requirements of his mentor. His roommate encouraged him: "Old gentlemen have never caught up with the opportunity to draft contract law in their lives, and you are only 21 years old, and you should feel lucky to have the opportunity to participate in the drafting of the draft of contract law expert advice." ”

Looking back after 30 years, Wang Yi is convinced that he caught up with a very special opportunity to draft a law: the socialist market economy was far from the reality of China's social life at that time, the drafting of the contract law was ahead of social life, and the lack of life experience of young people would not be an obstacle, because everyone did not have enough experience in the socialist market economy. For the drafters of the law, this time, the value of the text was rarely higher than the value of social life, and the United Nations Convention on Contracts for the International Sale of Goods and the General Principles of International Commercial Contracts were the most important task for scholars to look at what was commonly used in the world, and the most critical task was to absorb and learn from it, and in the words of the time, "to be in line with international standards".

One more step further

In 1998, when the drafting of the property law was officially launched, Wang Yi was studying for a doctorate at the Law School of Chinese University.

The second generation of civil law scholars, represented by Wang Liming, Liang Huixing, Cui Jianyuan, Sun Xianzhong and others, officially went to the front line of law drafting and began to play a backbone role. Wang Yi told China News Weekly that at that time, his mentor Wang Liming and Liang Huixing, a professor at the Institute of Law of the Chinese Academy of Social Sciences, were entrusted by the Legislative Affairs Committee of the Standing Committee of the National People's Congress to draft the draft of the property law experts.

As one of the areas with the strongest recognized inherent law (referring to the law that retains a large number of national, national and historical traditions), it is difficult for property law to find international general rules like contract law, let alone directly copy the laws of other countries. "The need for property law to respond to reality is already very strong. Wang Yi recalled.

At the same time, a large number of foreign documents began to be translated into China, which greatly broadened the intellectual horizons of scholars. The accumulation of talents and knowledge has made the discussion in the civil law community more active and the confrontation more intense. However, he found that scholars with different views often made different assumptions about the type of problem, and that when faced with the same problem, some scholars thought it was a factual judgment, while others thought it was a value judgment or an interpretive choice.

When we read literature, we are confronted with one full stop after another in the middle of the text, but they are actually full stops in response to a particular question mark. We need to know what the question mark is that full stop. You have to think and critique the premise, which is what the civil law scholars are concerned about. Wang Yi told China News Weekly.

By the time the drafting of the fourth civil code was launched in 2001, the differences became more and more apparent. Individual academic disputes may even turn into emotional disputes among scholars, and the controversy will spill over into the civil law community and receive widespread attention from the society.

The discussants who participated in the seminar organized by the legislature had their own views and understandings, so how could they form an effective debate and discuss within the scope of reason?During this period, Wang Yi tried to answer these questions in an article.

The core of the civil law approach is to solve three questions: first, what are the conditions for effective discussion?Second, what are the methods for effective discussion?Third, where are the boundaries of effective discussion?"You must have the ability to discuss, and you must have the wisdom not to argue. Wang Yi concludes that in order to have an effective discussion on the issue of value judgment, the discussants must share a minimum consensus on value, which contains the rule of the burden of argumentation on the issue of value judgment.

From the perspective of the actual situation in the Chinese civil law circles, scholars can at least reach a consensus on the two basic principles of civil law, "equality" and "freedom". Accordingly, Wang Yi proposes two substantive argumentation rules: first, in the absence of sufficient and justifiable reasons, equal treatment in the strong sense should be insisted upon;Second, in the absence of sufficient and justifiable reasons, it is not permissible to claim the restriction of the freedom of civil subjects.

If it weren't for the opportunity to participate in the drafting of contract law from the master's level, you would not have recognized so many types of issues in civil law. Because in the middle of participating in legislation, any kind of controversy may be faced, and any viewpoint may be encountered. Wang Yi told China News Weekly.

From the "Age of Axioms" to the "Age of Reason".

On September 5, 2016, he was a well-known civil jurist and the drafter of the General Principles of Civil Law.

1. Wei Zhenying, a professor at Peking University Law School, passed away.

By the time he entered the intensive care unit, it was already very difficult to speak. Every time I visit, my husband talks about the Civil Code. After the gentleman entered the intensive care unit, it became more and more difficult to speak, so he motioned for us to talk more. The gentleman listened carefully and did not let go of every detail. Wang Yi had studied with Wei Zhenying at Peking University Law School as a postdoctoral fellow, and when he visited Wei Zhenying for the last time, the old gentleman held his hand tightly. He asked the teacher to persevere, and he must stick to it until the introduction of the Civil Code in 2020. The gentleman nodded with difficulty, tears streaming down the corners of his eyes. Wang Yi recalled in the memorial article.

Codifying a civil code that belongs to the Chinese themselves is the dream of generations of civil law scholars. With the continuous improvement of China's socialist market economy system, the time is ripe for the compilation of the civil code due to the duplication and contradiction of individual laws under the state of decentralized legislation.

Wang Yi remembers the envious look of his overseas counterparts: "You are so lucky, as soon as we were born, we found that there was already a civil code here." In 2004, Wang Liming led a delegation to Taiwan, and Wang Yi was among them. He remembers that at the seminar on the Civil Code, a professor on the other side of the strait said: "Our counterparts on the mainland must work hard to formulate a civil code that we Chinese are proud of!"”

On March 20, 2015, the compilation of the Civil Code was officially launched. Wang Yi and his teachers at the undergraduate, master's, and doctoral levels were all on the scene. He remembers the sacred atmosphere, "This day will definitely be written in history." Everyone knows that this is a major event that has an impact on the country and the nation. As participants, we answer questions from countries and nations as scholars. There is a lot of energy in everyone's hearts, hoping that it will be excellent, useful to the country and the nation, and recognized by the world's peers."

However, in the process of compiling the Civil Code, how scholars with different views can reach mutual understanding and form a consensus is still a problem that plagues everyone. Wang Yi found that there was a lack of consensus on "what is the most important issue".

First, what are the interests in the reality of China's social life?What has been the strategy of coordination for these interests in the past?What are the coordination goals preset by these coordination strategies?Have these coordination goals been achieved?Second, what is the consensus of values shared by Chinese today?In Wang Yi's view, the compilation of China's civil code must not only have Chinese characteristics, but also be full of the spirit of the times, so it is necessary to face and respond to these two factual judgment issues. On this basis, the value judgment of "how to respond", the question of interpretation choice, and the technical issue of legislation will be further extended.

This is a process that can promote the transformation of "China's civil law academic system" into "China's civil law academic system". Wang Yi believes that for quite a long time, China's civil law scholars have been accustomed to using extraterritorial theories to discuss issues, "In the past, there was a popular way to write articles, starting with Roman law, and then writing about what French civil law is, what German civil law looks like, what Swiss civil law looks like, what Japanese civil law looks like, and then what China should look like." I wrote so myself".

The real comparative analysis as a method of legal argumentation must be the social empirical analysis of the law, rather than listing those legislative examples that can be compared, and the process of legal argumentation is completed. Wang Yi rarely directly denies the academic views of others, but he has a clear attitude towards this writing habit.

He understands the causes of this habit. "At the end of the Qing Dynasty and the beginning of the Republic of China, the biggest blow to our nation was not only the realization that the utensils and systems were inferior to people, but also the belief that our culture was inferior to people, which means that Chinese whole way of looking at ourselves, family, society, country, human beings, and nature in the past was wrong, and the values, outlook on life, and world view were all wrong, which would lead to the loss of our cultural self-esteem and self-confidence. In this context, the West will gradually spread to the East, and the things that have been passed on will be placed in a fairly high position. Wang Yi observes that in such a situation, people's minds will be "formatted", "after the first glance, they will never be able to come out again, and it is not easy to integrate new ideas and opinions".

In Wang Yi's view, since the drafting of the property law, the academic community has dared to discuss, and after the discussion, it is likely to propose a solution that is different from that of its predecessors, "This is a great change." Leaving it in the past, what else is there to discuss?There is simply no courage to question and challenge".

From copying the legal systems and legal theories of Japan, the Soviet Union, Eastern Europe, Britain, the United States, and Western Europe, to believing that the answers are in the hands of a few authorities, to having the courage to discuss and propose new solutions, Wang Yi summarized the development of China's civil law into three stages: the "axiomatic age", the "truth age" and the "truth age". Now in the "age of truth", Wang Yi believes that "what others have, we can do without;."What others don't have, we can have;We can be different from others, or even better than others, and the key lies in whether the plan we put forward is reasonable and whether it can stand the test of practice."

It's been more than three years since the Civil Code was promulgated, and the Civil Code no longer dominates the headlines, but for civil law scholars like Wang Yi, attention has never shifted.

Next, the 1,260 articles of the Civil Code will enter the judgment documents, enter every specific judicial decision, administrative decision, and enter our daily life. As scholars, we will continue to observe whether the Civil Code has had a substantial impact on people's daily lives, and whether it has changed from a rule on paper to a law in action. Wang Yi told China News Weekly.

He is also paying attention to a series of judicial interpretations issued by the Supreme People's Court, "The practical implementation of the Civil Code still needs a lot of legislative and judicial documents to support, and there is still a lot of work to be done, and it will always be on the way, and there will be a day when it will not be completed."

In the "age of truth", the importance of academic discussion has never been more prominent. Three months after the promulgation of the Civil Code, Wang Yi was appointed vice president of the Chinese People's University, and more social work and management affairs came in, and time was cut into pieces. But he requires himself to teach undergraduates for at least one semester every academic year, to keep thinking in the professional field, and more importantly, to teach his thinking about the other party and normative theory to groups of younger and younger students.

When everyone has very strong orientations, preconceptions, and preferences, opposing views are difficult to change through rational discussion. But the problem is that when people have not yet developed their own stable orientations, preconceptions, and preferences, it matters who says what. In the past, when people were faced with controversial civil law issues, they lacked the concept of making a detailed distinction between the types of issues, so I tried to talk about it, and I talked about my understanding and views on this issue, and slowly influenced people's orientation, preconceptions and preferences. He believed in Nietzsche's words: "Repeat a dream and you can turn it into reality." ”

Issued in 20241.1. The 1123rd issue of China News Weekly.

Magazine title: Wang Yi: Let civil law be reasonable.

Reporter: Wang Yu.