What is civil law --- concept of civil law?
Civil law is a system, but also a concept, it is so many concepts of civil law, like the cells of civil law, they formed the great system of civil law, the civil relations and economic activities of human society through the beginning, I wanted to "the concept of civil law" As mentioned above, civil law is a system formed by concepts, and concepts are the basic components of the civil law system. This article is intended for beginners taking the National Legal Professional Qualification Examination for reference and Xi. The concept may seem boring, but it's indispensable.
The first concept: what is civil law?
- Distant Eastern Rome, today's Civil Code.
In February 528 (the first year of Wutai of the Northern Wei Dynasty), Emperor Justinian I of the Eastern Roman Empire in Constantinople (now Istanbul, Turkey) appointed a committee of more than ten people to compile the "Encyclopedia of the Law of Nations" of the Eastern Roman Empire, which was the "Roman Law" inherited by later generations.
Justinian I is said to have been born in the army, spoke Latin, followed his uncle Justinian who held military power into the office, and was adopted as an adopted son, and was able to inherit the throne after the death of his adoptive father.
It is not clear why this emperor was in a hurry to compile a uniform code of laws in the second year after his accession to the throne, but it was indeed a blessing for the emperor from a military background to be interested in formulating systematic private law regulations, and of course the Encyclopedia of National Law was not built out of thin air, but continued to be refined and codified on the basis of the legislation of the previous generations of the Eastern Roman Empire. Because there are a large number of private law provisions in this code, which are "the most perfect law for simple commodity production, that is, commodity production before capitalism", it has become a model for later civil codes and has had an irreplaceable impact on modern civil law.
Its usefulness may have been, as some scholars have suggested, Roman law was Rome's third conquest of the world, after force and religion, and this conquest was the most peaceful and lasting. As it has been said, Roman law was reborn with bourgeois civil legislation and had a worldwide influence, and Roman force and religion may not have been able to penetrate the world, but Roman law did.
In March 528 AD, that is, a month after Justinian I decided to compile the code, Emperor Xiaoming of the Northern Wei Dynasty died violently, which triggered the Heyin Change, and Zhu Rong, who held the military power, killed the ministers of the Northern Wei Dynasty, after which the Northern Wei ** was the Eastern Wei and the Western Wei, and the Western Wei was replaced by the Northern Zhou, in 581 AD, Yang Jian was given the title of Emperor Jing of the Northern Zhou Dynasty, and the founding name was Sui, and the Yuan Kaihuang was changed to Emperor Wen of Sui, and Emperor Wen of Sui formulated the "Kaihuang Law" in 581 AD during the reign of Emperor Wen of Sui Although the Sui Dynasty was short-lived, the "Kaihuang Law" perfected the five punishment systems of flogging, rod, apprenticeship, exile, and death, formed the death penalty repetition system, the ten evil systems, and improved the official and eight discussion systems, which was the model of Tang law, and finally formed the Chinese legal system.
However, because China's civil system generally exists in Xi law, whether it is the "Kaihuang Law" or the Tang Law, they are more focused on the content of punishment and administrative management, ancient Chinese society is an agricultural society, with family as blood ties, patriarchal rituals and religions as governance rules, all dynasties have adopted a policy of heavy agriculture and suppressing business, and the external ** adopts the tributary system, that is, the external ** organized by the state Until the end of the Qing Dynasty in 1902, the new law began to be revised, and in 1904, the revised law hall was established, and the draft of the "Draft Civil Law of the Qing Dynasty" was completed in 1910, when more than 1,300 years had passed since Justinian I compiled the "Encyclopedia of National Law".
On January 1, 2021, the Civil Code of the People's Republic of China came into effect.
- What is civil law, equality, fairness, voluntariness, good faith.
What is civil law is the first conceptual question raised in this paper. It is also the first problem that beginners in civil law have to face. According to the general theory, civil law is the sum total of legal norms that regulate personal and property relations between equal subjects. This is civil law in the broad sense, while civil law in the narrow sense, that is, civil law in the formal sense, only refers to the civil code.
Tracing the origin of the word "civil law", according to the academic point of view, it was created by Japanese scholars, roughly derived from French or Dutch, and named after the "Civil Code of the Japanese Empire" drafted in 1898, and China completed the "Draft of the Civil Law of the Qing Dynasty" in 1910, marking the introduction of the word "civil law" into China (the words law and law are synonymous), and has been used to this day.
Article 2 of the Civil Code of the People's Republic of China stipulates that the Civil Code regulates the personal and property relations between natural persons, legal persons and unincorporated organizations of equal subjects.
This article stipulates that the objects of adjustment of the civil law must first be equal, and the relationship between unequal subjects shall not be adjusted by the law, such as the relationship between the administrative management and the managed between the upper and lower levels of the administrative organ.
For example, state organs, of course, have the power of administrative law enforcement, but if the market supervision and administration bureau and the printing shop enter into a contract for the purchase of printing consumables, it is a civil legal relationship, if the market supervision and administration bureau does not perform the contractual obligations, the anti-dumping dispute is a civil dispute, it is subject to the adjustment of the civil law, that is, to determine the rights, obligations and responsibilities of both parties in accordance with the civil law.
Therefore, equality here actually depends on whether the legal relationship in which the subject participates is a civil legal relationship, and if the subject participates in the civil legal relationship, no matter what kind of background it has, what kind of power it holds, and what kind of qualifications it has, its legal status in the civil legal relationship is equal.
Article 4 of the Civil Code stipulates that all civil subjects have equal legal status in civil activities.
It can be seen that the civil law regulates the relationship between the subjects in the civil legal relationship, and other legal relations outside the civil legal relationship are not within the scope of the adjustment of the civil law. Once any subject participates in the legal relationship of civil law, all are equal, which is required by the principle of equality in modern civil law.
From equality and fairness and voluntariness, and from fairness, voluntariness and honesty and trustworthiness, the principle of equality, voluntariness (autonomy of will), fairness and good faith, as the four principles of civil law, have laid the overall value orientation of civil law and formed the cornerstone of civil activities.
Secondly, the civil law regulates personal relations and property relations, and the entire civil code has actually developed and formed its own system.
The Civil Code consists of seven parts, the first of which is a general provision, which is a general provision, which refers to the summary of the most abstract part of the legal concept in all civil legal relations in the Civil Code, which is placed in the first part of the entire Civil Code and is generally applicable to other parts.
Part IV is the Personality Rights Section, the Fifth Title Marriage and Family Section, and the Inheritance Section 6 mainly stipulate personal relationships.
Part 2 is part property rights, and part 3 part of contracts mainly stipulates property relations.
The last part, Part VII, on tort liability, mainly stipulates civil relations that infringe on civil rights and interests such as personal rights and property rights. Civil law is like a towering tree, its roots are deeply rooted in the soil of history, and it constantly absorbs the nutrients of culture. The leafy foliage of this large tree stretches towards the sky, revealing its vitality. This vitality comes from its strong vitality and rich connotation.
To be continued).