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As we all know, the 19th century to the 20th century, the transition stage is the stage of a dramatic social changes in the world of big vision, the free development of capitalism into monopoly and then by the state monopoly, the rapid development of productive forces, science and technology advances, various social movements continue emergence of these social factors, changes in the law has led to changes. As "Wan Law of the mother" civil law, the change is of outstanding significance.
First, the modern civil law to the modern civil law changes
The so-called modern civil law is after 17, 18 century, European countries in the 19th century codified civil code and civil law to obtain a finalized set of concepts, principles, systems, theory and ideology, of which the most typical of the French Civil Code 1804; The modern civil law refers to the modern civil law in the 20th century, the continuation and development of the legal structure of the modern civil law basis for modern civil law principles, the principle of correction, the development results. Civil process of change is reflected in many ways, following capture only be one of the more prominent aspects of comparative analysis:
(A) by the right standard to the social standard
Modern civil law is the crushing of the feudal relations of production built on the basis of personal relationships to adjust a variety of new laws, it features "the status to contract," the anti-feudal nature of the adjustment in its legal relationship, each person are autonomous individuals, and thus is a personal standard of modern civil law. In addition, the modern civil rights-as a starting point, emphasizing the protection of individual rights, denial of personal obligation to focus only on the legal concept of feudal society, so the modern civil law is the law right standard. Correspondingly, the modern civil law affirmed the absolute ownership, freedom of contract and negligence three principles.
However, with the formation of monopoly capitalism, became too much emphasis on the right things does not comply with social justice. Because rights are conferred by a law of human freedom, for the rights of people, he has a right to exercise freedom has not exercised freedom. In some cases, the right holder improper exercise of power will result in a non-justice, ie "abuse of rights", on the other hand, the right holder may also occur, such as delay in exercising the right waste of social resources of the state. These are inconsistent with social justice. Most of the modern civil law countries which have the following two requirements: First, the prohibition of abuse of rights, shall not exercise their rights to the detriment of others for the primary purpose; Second enforceable right, the right to compulsory. The three principles of civil law has also been amended to reflect the absolute ownership restrictions, restrictions on freedom of contract as well as the adoption of no-fault liability, which is the standard for modern civil society embodies. [1]
(B) from the Codex centrism to "de-codification"
First, it should be noted that this change has occurred mainly in developing Codex traditional civil law countries. After the Dark Ages, the European continent in the territorial division in many countries, the legal status of dispersion. During this period, the Codex is seen as a sign of the modern nation-state, but also the rule of law unified tool. Thus, the 19th century until the early 20th century, civil law countries have formulated Civil Code. Become a source of law codified the end of pluralism and chaos means. In the 19th century codification movement, Codex centrism played a dominant role ---- Codex was regarded as the sole source of law, while the enactment of the law on the single negative attitude. Codex centrism that time is of positive significance, it is not just a unified legal system and the legal system of the need, and more importantly, it is the exclusive source of law needs.
Since the 20th century, the Codex centrism phenomenon has eased. The rapid development of industrial society, market economy and ever-changing, the emergence of a large number of new social phenomena and complex problem that requires timely response to its laws, and the Codex Alimentarius centrism and the inherent lag, apparently unable to meet this need. Therefore, many countries outside of the Codex has developed a large number of single law, case law has gradually been adopted which play an important role, coupled with some of the model law, international treaties applicable, are to some extent affected the Codex center. Codification phenomenon began to appear. [4] to the codification of the so-called, is due to the addition of large quantities of Codex special law weakens the central position of the Civil Code and the basic values, and these special law itself constitutes a number of micro-systems, so that the Civil Code itself marginalized . Italian scholar Yi Erdi pointed to the codification of a "gradual legislative activities of the Civil Code hollowed out through a series of legislative activity, in addition to the Civil Code adjusting civil relations, and make some new principles in the Civil Code of the surrounding , the emergence of some 'civil microscopic system'. " [2] From this we can draw the following conclusions: go to codification is not a school of thought, but rather an objective legal phenomenon, it makes the central position of the Codex has been shaken. It should be noted that the intention is not to codification that opposed the enactment of the Civil Code, or completely negate the meaning of the Civil Code.
(C) from concept to the law on freedom of movement
19th century is the dominant concept of law. Legal concept originated in Germany Pandect law, to warm Dexia De developed to its peak. In France, after the rise of the Civil Code from 1804 to the 1970s school notes to the development of the concept of law as the center of the Codex. Concept of law is characterized as follows: 1, in the sources of law issues, the formulation of national law as the sole source of law, exclusion of customary law and jurisprudence. 2, emphasizing self-sufficiency of the legal system has logical, does not recognize the legal loopholes. 3, for the interpretation of the law, with emphasis on formal logic operations, excluding the interpreter to measure the benefit of specific cases and purposes considered. 4, the judge denied the dynamic role of the judge as the applicable law machinery, denying law-making function of judicial activities. 5, that the Law Department purely theoretical awareness activities, does not have a practical nature, without value judgments. [3]
20 century saw huge social changes intense, thus requiring the detention of law breaking concept flexibly interpret the law to achieve specific social propriety. Garling critique of the concept of law led to the decline of the concept of law. Purpose of law, freedom of law, science and benefits of law school formed in the 20th century critique of the concept of law on freedom of movement. Purpose of the law is the law emphasizes the product of human will, it is to interpret the law must first understand what the law really want to achieve the purpose, in order to explain the point of departure; freedom jurisprudence emphasizes legislators often due to the negligence of the law without unforeseen or inevitable result of changed circumstances and occur many loopholes, this time, the judge should free to explore social life living legally; scientific schools in the comment school emphasis on internal statutes centrism critically stressed in the judgment of law must be added to unite elements of laws considerations, emphasizing the idea of respect and study jurisprudence. Legal concept of the stability of the value of the pursuit of law, and thus adhere to a strict interpretation, validity and freedom to pursue legal value, and thus advocates discretion. Attempt to balance the interests of stability and legal validity of two values, advocates for legal loopholes, legislators should explore the existing law led or coordinated desired benefits, as far as possible without compromising the stability of law under the premise of seeking specific referee properly sex.
The civil legislation began in late 20th century, so in many ways directly absorb the results of these changes. However, you must learn from and absorb the actual situation of the United Kingdom, based on a selection of the draw, so as to achieve the coordination of donor and recipient, so that these results play an active role. Therefore, we need the situation in the UK has a clear understanding. Second, the social basis of the British state and civil legislation
Britain is a country with thousands of years of feudal history of the country. British feudal society, politically highly centralized and hierarchical patriarchal system makes no equality between individuals independent personality at all; economically self-sufficient economy and Restraining Commerce tradition, the farmers firmly ground tied to the land, and led farmers landlords personal attachment; ideological culture "Respect", "kiss", "three cardinal guides" "official position" and other feudal ideology deeply rooted in people's minds, freedom, equality , no way to generate independent spirit. Then British, did not form the basis of the public as a civil society, said today so there is no adjustment equal subjects of legal relations between China and France. Therefore, some scholars say, "England has always been no civil law." After a series of social revolution and change after the UK's current primary stage of socialism and is committed to the development of the socialist market economy, but because of society's deeply embedded and entrenched feudal ideology, the British did not make social change as a basis for civil law genuine civil society can be established and improved. Economically, the United Kingdom did not experience the full development of capitalism, and direct access to the socialist market economy experienced only a short period of thirty years of development, and the Western countries for hundreds of years compared to a market economy history, regimes are not perfect, but Trading activity in the regulation of the market economy lack of relevant experience. Politically, although the British establishment of the people's democratic dictatorship regime, but the British did not sound democratic system, in many cases the people's will because there is no smooth channels and not expressed interest demands. Thinking, although the feudal autocratic rule has been overturned nearly a century, but the people in many ways but also by feudal imprisonment, lack of pursuit of freedom, equality and independence of spirit.#p#分页标题#e#
Look at the development of the British civil law. As mentioned earlier, the United Kingdom has always been no civil, political reform learn from the West end of the Qing legal system began to develop civil law, but did not succeed and clear and death. After the government of the Republic and Northern governments have also failed to develop the Civil Code. Nanjing National Government has drawn up English first Civil Code. [5] However, after the establishment of New England, on the one hand because the abolition of the National Government in the Six Laws Civil leaving this continent ineffective; partly because busy with a variety of "political movement" and the recognition reasons, coupled with the planned economy system under mostly by administrative instructions to adjust economic activity, does not attach civil law legislation. Until the reform and opening up, China and France was only legislative attention. But after experiencing three drafting activities, the Civil Code still "giving birth", so the British Civil academic consensus, first formulated various single law, and then formulate a unified civil code. Currently, Britain has formulated and promulgated the "Civil Law", "security law", "Contract Law", "Property Law", "Tort Liability Act" and a series of laws, as the Civil Code, the content of each series has a corresponding single law , the United Kingdom enacted the Civil Code of the conditions are ripe, the drafting of a new one is in full swing in progress.
Second, the task of the British Civil
(A) British civil rights should be based primarily
As mentioned earlier, the Western countries have experienced freedom to monopoly capitalism by the process of change. In periods of rising capitalism, by the laissez-faire economic policies, civil rights-based approach to take, fiercely protective of individual property rights, in order to promote free competition to stimulate the capitalist market economy developed. However, after the mid-19th century, such as the confrontation occurred, the wealth gap and other social problems. In addition, since the proliferation of extreme individualism, excessive expansion of people's awareness of their rights, people are not concerned in the exercise of rights of others and the interests of society, often resulting in infringement of the interests of others or waste of social resources of the state. Therefore, China and France must respond to the people's right to make the necessary restrictions, which is the social standard of the rule of law. [6] However, there are thousands of years the other hand, the United Kingdom's obligations based legal traditions, personal concepts, the concept of right is very weak, coupled with the new democratic rule of law in the United Kingdom after the establishment of the development of a detour, English civil law was in for a long period period of neglect of the rights and interests of citizens, one-sided emphasis on national, social interests, the law ideologically radical social performance standard. In view of this, the British civil law, especially in the forthcoming Civil Code, should highlight the right standard, emphasizing the legitimate rights and interests of citizens legal protection, on this basis, to take into account the interests of social welfare and the protection of third parties. In other words, the British civil law should reflect the rights-based society of the phase combining to rights-based-based, community based, supplemented by legislative ideas. Here, it should be noted that the so-called social standard is definitely not for the right standard of doubt or waver, but the so-called social legislation and implementation of the rights allocated to the proper rule amendments, namely through restrictions on the rights of an individual eventually reach every individual is entitled to the effect of more extensive rights. [7]
(B) English civil law should reach their own system improvement
China and France as the adjustment of the main legal people's social relations, should have their separate sound system, in order to judge the applicable laws. This so-called independent improvement refers to civil legislation should be handled within the system of civil law between laws, the future of the Civil Code and the special law between statutory and other legal relations between the sources, clear boundaries between them, the judge's activities do not find the law into contradiction and confusion. Currently, Britain has successively promulgated and revised Civil Law, Contract Law, Guarantee Law, Property Law, Tort Liability Act and other civil law and the various judicial interpretations have been eliminated from the general civil law, "no laws" phenomenon. But because there is no uniform civil code, each single law has actually formed a lot of micro-systems, and between a large number of repetitions and contradictions phenomena between general law and special law relationship is ambiguous, the referee regulate the nature of the it is difficult to identify, which gave the court applied the law makes it difficult. Therefore, the main task of the British legal system should be to solve the problem of the civil legislation of the system. As mentioned earlier, the Codex has a unified legal system and the legal system of functions. Therefore, we should take codified way to achieve a system of civil legislation. Of course, in the formulation of the Civil Code, they should also focus on "going codification" phenomenon. I think the UK should be a future Civil Code Civil Code openness. Napoleon had intended to make the French Civil Code as a Codex contains all civil norms, facts have proved that closed the Civil Code is a failure. Civil Code, as with all statutes, must have its limitations, along with the development and the evolution of society, the Civil Code itself needs to adapt to social development and continue to develop. But the Codex stability requirements necessary to make it impossible to frequent changes. Therefore, in the compilation of the Civil Code, the design of the system to maintain a certain degree of flexibility permitted and appropriately develop and license terms, the use of an internal Civil Code and special legislation to achieve convergence between civil law. There are also other sources necessary to open, give full play to customary law, case law and other legal sources role. Codex is open to a considerable extent on the performance of the Codex content flexibility and scalability, as well as for other sources of openness. (Three) English civil law concepts should escape from the detention
On the legislative level above discusses the sources of law openness requirements, the following interpretation theory from the perspective of this requirement. Since Jelling later, the concept of law because of constantly being criticized by civil law scholars and increasingly decline. Domination of its statute as the sole source of law, exclusion of customary law and jurisprudence, logic of self-sufficiency that the law has loopholes in the law to deny the existence of formality rather negative value judgment logic operations, negative view of judge-made law capabilities are rigid dogma , has been difficult to meet changing social conditions on the administration of justice requires. As we all know, because legislators limited ability to foresee or limited ability to express, or the failure sparse legislation, or the situation changes, inevitably there are loopholes in the law, the law can not be reached within the logic of its own self-contained, so the judge in the face of legal vulnerability is bound to resort to habit or legal precedents. In the habit of jurisprudence applicable, the law interpretation will often be some value judgments, such as it is customary to reach at the public generally accepted and not with laws dictate and public order and morals contrary to the criteria to be used as source of law apply. Since it allows judges in interpreting statutes applicable law from time to time to seek outside sources of law, they are bound to recognize the ability of judges discretion. English civil law should this reality, the law is not superstition hermeneutics statute, especially not hope to develop an all-encompassing closed Civil Code, which should see the possibility of legal loopholes exist. In the interpretation of the law, they need to focus on a single line between an internal civil law cited, but also pay attention to diet, jurisprudence, jurisprudence and other role in maintaining the openness of the Civil Code, in order to adapt to rapidly changing social conditions. At the same time, but also pay attention to the legal value judgments, through legislation and other documents so that the judicial reasons to understand the value of legislators considerations, improve judicial legal professionalism in order to explain the appropriateness of the legal value according to the law.
All in all, at the legislative level, the UK is currently through the development of a rights-based, open civil code to refine the British civil law system; at the judicial level, the judiciary should abandon the concept of law instead of focusing on legislative intent in the search on the basis of full use habits, jurisprudence and other legal sources, to achieve the purpose of interpreting the law appropriateness.
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