On China’s Civil Law Codification and the Development of China’s Civil Law Scholarship

The development of the theoretical system of civil law scholarship and the codification of civil law are closely related and of promotional function to each other.The codification of civil law can promote the systematization of civil law scholarship,perfection of the value system,development and modernization of civil law studies,and the systematization of legal hermeneutics.The subjectivity of China’s civil law scholarship,i.e.,the notions of problem-orientation,nativeness,practice,the times and innovations,can be improved during China’s civil law codification.The codification of civil law can promote the development of a theoretical system of civil law scholarship with Chinese characteristics,including the development of diversified elements such as values,content,system,hermeneutics and methods of civil law.

The Notion of Efficiency in China’s Civil Law Scholarship

The pursuit of economic efficiency is the major driver for the birth of contemporary Chinese civil law.Contemporary civil law scholarship has demonstrated a serious concern for efficiency from the very beginning.However,many examples suggest that the notion of economic efficiency is often diluted or replaced by factors like civil law doctrinal scholasticism,moral notions,inertial thinking of the planned economy or the will of the leader.It has not been systematically attended to or expressed in a detailed and precise way in the contemporary civil law scholarship in China,rendering some economic judgments uneconomical.In the 21 st century,it is necessary for the civil law studies to establish a clearer and more precise notion of efficiency,to conduct more direct and accurate evaluations on civil laws’incentives on people’s behaviors and their socio-economic effects,so as to reduce the cost of social interactions and promote deeper cooperation and winwin outcome among individuals.

On the protection of the right of privacy of patients by the civil law

The development of China＇s medical industry is very fast, which has provided a great help for people, but in the process, there are also a lot of problems violating the privacy of the patients. Based on these circumstances, we must offer the maximum protection of the privacy of the patients. From the point of view of the civil law, the medical institutions or the medical professionals must respect the patients, and protect the patients＇ privacy, so as to build a more harmonious relationship between the doctors and the patients.

The Protection of the Right to Dignity in the Connection and Interaction between the Constitution and Civil Law

In the report of 19;National Congress of the Communist Party of China,General Secretary Xi Jinping said that China seeks to"accelerate development of the crime prevention and control system,combat and punish in accordance with law all illegal and criminal activities such as pornography,gambling,drug abuse,gang violence,kidnapping,and fraud,and protect people’s personal rights,property rights,and right

General Provisions of the Civil Law and Commercial Legislation: Consensus, Problems and Options——Taking Commercial Agency as an Example

In the context of the codification of China's Civil Code, the academic consensus has been to make commercial legislation systematic and establish commercial norms with proper legislative expression. Many direct and indirect commercial norms in General Provisions of the Civil Law provide evidence that civil law has been turned into commercial law. However, a general overview shows that the absence of related norms, including agency in duty, reveals that General Provisions of the Civil Law is lacking commercial law's characteristics. In addition to the Civil Code, using General Rules of Commercial Law is a relatively reasonable choice for commercial legislative arrangements, such as norms in relation to agency in duty. Taking commercial agency as an example, legislators should adopt problem-oriented and limited systematic patterns of "residue law" instead of unified patterns of codification.

From the General Provisions of Civil Law to the General Rules of Civil Law:A Historic Leap

The General Provisions of Civil Law(民法通则),formulated in the early days of reform and opening up,was a special law that set out the basic principles or rules of civil law,defining civil subjects,civil legal acts and the agency system,declaring the civil rights enjoyed by civil subjects,establishing a relatively complete system of civil liability system,and so on.It kindled awareness of civil rights among the mass of the population,ensured China’s rapid economic and social development,and laid down a basic framework and content for the civil code,so holds an important position in contemporary Chinese history.But with the development of the economy and society,civil law has had to change with the times.Civil law jurisprudence injects theoretical support into contemporary civil law legislation,and the blueprint for law based governance provides a powerful impetus to the historic leap forward of contemporary Chinese civil law,providing the necessary conditions for the codification of civil law.The completion of the General Rules of Civil Law(民法总则)answers the requirements of the economic,humanist and legal character of the times,demonstrates the humanist stance and spirit of the civil code,rises to the challenge of modern scientific and technological development,and ensures people’s enjoyment and control of their new-style rights and their objective forms.This signifies that the GPCL has accomplished its historical task and civil law in contemporary China has realized a historic leap forward,laying a foundation for the compilation of the Chinese civil code,including the specific provisions of the framework and the contents of its individual parts.

Changes in the Social Foundation and Construction of a Dual System of Civil Law

The civil law system is divided into an internal and an external system. The value orientation of the internal system guides the external system, whose components （concepts, norms and institutions） serve as a vehicle for the internal system. As the social foundation changes, the internal system of modem civil law has developed such basic principles as private autonomy, protection of the disadvantaged, protection of reliance interests and self- liability, principles that have permeated into the concepts, norms and institutions of the external system. The formulation of the Chinese civil code should take into account the foundations of Chinese society and give due weight to the construction of a dual system of civil law. By defining ＂person＂ in civil law, clarifying the expression of the internal and external systems in both the law of real rights and the law of obligations, and examining flaws in specific branches of civil law, we hope to advance the formulation of China＇s civil code.

China's civil law since reform and opening up in 1978

Since reform and opening up were launched in 1978, China＇s civil law has made progress in terms of both values and systems. Specifically, the status of the individual as the subject of private law has been gradually established, the autonomy of private law as the cornerstone of civil law has been laid down, private interests and rights have been recognized and genuinely guaranteed, and the scientific nature of civil law has developed rapidly. However, there is still some room for improvement in degree of formal rationality of current civil law. Upholding the autonomy and formal and rational development of civil law is of great significance for Chinese society. At the same time, it is necessary to preserve a certain degree of openness in civil law in order to overcome some inherent defects in formal rational law.

Civil Law:Its Humanistic Concerns

In contrast to early modern civil law, which centered on property law, modern civil law shows intensified humanistic concerns. This is mainly reflected in the rising status of personal law, and is also widely evidenced in the development within civil law of the subject, personal rights, the contract system, real right law and tort law, as well as marriage and family law. China＇s future civil code should construct civil law values based on humanistic concerns and highlight the full protection of human freedom and dignity and special care for disadvantaged groups. In line with this idea, it is necessary to include law on personal rights and tort law in the future civil code. Humanistic concerns should be strengthened in the application of civil law.

General Principles of the Civil Law of the People's Republic of China

In this issue we will introduce readers to the General Principles of the Civil Lave of the People's Republic of China, which was adopted at the Fourth Session of the Sixth National People's Congress, promulgated by order No.37 of the President of the People's Republic of China on April 12, 1986, and effective as of January 1, 1987.This law was formulated according to the constitution and the actual situation in our country, drawing upon our practical experience in civil actirities,for the purpose of protecting the lawful civil rights and interests of citizens and legal persons and correctly adjusting civil relations,so as to meet the needs of the developing socialist modernizationThe Civil Law of the People's Republie of China has 156 articles and 9 chapters. The chapters are:1) Basic Principles;2) Citizen (Natural Person); 3) Legal Persons; 4) Civil Law and Agencies; 5)Civil Rights; 6) Civil Liability; 7) Limitations of Action; 8) Application of Law in Civil Relations with Foreigners; and 9) Supplementary Provisions.All the articles apply to women. We have only extracted some of them which are concerning the protection of rights and interests of women and children.

A SUMMARY OF THE CIVIL AVIATION LAW

Early in 1979,China beganconsidering the drawing up of alaw to govern and standardize theactivities of its civil air operations. At that time,air legislation wassomething nonexistent in China.Thedraft team assembled forces totranslate the air laws of various foreigncountries,including the United States,Britain,Japan and the former SovietUnion,and the relevant internationalconventions,and conducted a deep-going study of them.They also madeinspection tours of the United States,Canada,Britain and Germany.Onthe basis of the study of and withreference to the advanced legislativepractices in foreign countries,thedraft team put forward its first draft ofthe air law in July 1983,in accordancewith the actual conditions of thecountry.It was not,however,submitted to an executive meetingof the State Council for examinationand discussion because a series ofmajor problems such as air trafficcontrol and the control over theairworthiness of aircraft,had to befurther investigated and studied.

How does the Civil Code Process the Civil and Commercial Relations According to the Insurance Law

The relationship between the civil law and commercial law is a long-standing issue of controversy in the area of private law, and it is also an issue of unavoidably legislative selection during the codification the civil code in almost every country. Since the founding of the People Republic of China, China has carried out the codification of civil code for four times, and since the part^s eighteen plenary session officially proposed the ＇codification of civil code＇, the issue of the civil and conmaercial relation draws the attention again, either unification or division of civil and commercial law directly affects the system and content of the civil code, and affects how to process the relationship between the civil law and commercial law during the codification of the civil code as well. The codification of the civil code should not only consider the legislative tradition of the civil and commercial legislation and the current legal system, but also pursue characteristics of the commercial law, in a system of combining civil and commercial law, through adding commercial law into the general principle of civil law; the existing commercial law should be separately retained.

美国生物安全信息披露豁免制度研究——以“Civil Beat Law Center诉CDC案”为例

美国在以《自由信息法案》为核心的信息披露制度体系中,通过衔接《公共卫生安全和生物恐怖主义预防和应对法案》,将生物安全信息披露豁免纳入政府信息披露豁免规则之中。本文基于Civil Beat Law Center诉CDC信息披露豁免案来分析美国生物安全信息披露豁免所涉法律适用、解释原则、运行方式等,试洞见其相关披露制度运行的特点和所存在的问题,以期能有助于国内相关的研究。

民法教学中的“一体化”思维模式培养

民法作为法学教学中最重要的一门专业课之一,一直面临一个不可回避的困难,即民法下属各分支领域之间的“思维壁垒”。为突破此困难,文章以请求权,这个民法理论和实践上的双重核心概念为支点,提出以“一体化”民事法律思维培养为中心的教学理念,并以“债权”,这个民法中最复杂、最特殊、最重要的分支为例,详细论证“一体化”思维模式培养的三个教学模块,即债权请求权的分类体系、债权请求权的抗辩体系和债权请求权的后置程序。同时根据上述内容改变传统的案例教学方法,形成一套能够适应“一体化”思维模式培养要求的案例教学方法。

法理学视阈下的生态文明法治

党的十八大以来,习近平总书记对生态文明建设作出一系列重要论述,提出“人与自然生命共同体”理念,强调人与自然关系在新高度上的辩证统一关系,让人类对人与自然之间关系的认识达到了一个全新的高度。“生态文明”成为我国的治国方略写进了宪法,标志着“生态法治”成为我国法治一项新的重要内容。“生态法治”已经成为我国法治的一个重要价值理念,成为我国社会主义法治所要追求的目标之一,是我国社会主义法治思想的升级进步。它把此前“保护环境”的制度规范上升到“法理价值”的哲学层面,从而将对我国整个法律体系带来根本性的影响。从法理学的角度阐释“生态法治”,可以丰富我国法学理论的内容,还能为“生态法治”建设提供理论指导。

人类文明形态演进的生命辩证法

马克思的世界观实现了相对于旧哲学世界观的革命性变革,这就是把价值论的维度引入世界观,从而不仅回答了“世界是什么”的本体论问题,而且回答了“世界向何处去”的价值论问题。按照马克思的世界观,人类文明形态的演进本质上是人类这一物种寻求永生的过程。于是,世界历史进程便表现为人类文明形态不断演进的过程。文明形态的演进遵循辩证法原理,而人类通过文明形态的演进,展现了人类独特的生命活动形式,即生命辩证法。共产主义社会文明形态实现了人类文明中“自然法则”和“理性法则”的辩证统一,使人类这一物种的永久生存成为可能。

反垄断检察民事公益诉讼制度之具体构造

我国修正后的《反垄断法》规定了检察民事公益诉讼制度,但立法条文较为粗略,亟需完成制度的具体构造,尤其要科学合理地确定起诉条件、受案范围和诉请事项等核心内容。在起诉条件方面,重点要准确把握“损害社会公共利益”这项标准,要将是否排除或严重限制竞争作为关注重点,同时考察是否损害了非特定的众多消费者利益;在受案范围上,应仅覆盖垄断协议、滥用市场支配地位行为,经营者集中不宜作为可诉的行为类型;在诉请事项方面,应以停止侵害为主,不提出赔偿损失诉请。

社会主义核心价值观融入民法典的生成逻辑和实践向度

社会主义核心价值观与民法典形成相互影响、相互塑造的互构逻辑:社会主义核心价值观通过奠定思想灵魂塑造民法典的中国特色;民法典通过设定私法秩序形成社会主义核心价值观的运行规则。社会主义核心价值观融入民法典的生成逻辑包括德法合治的历史传统、法律和价值的耦合关系、民法典人民至上的价值旨归。社会主义核心价值观主要从立法、执法、司法、守法等不同层面融入民法典,具有宣示国家价值目标、引领社会价值取向、明确个人价值准则的重要作用。进一步厘清社会主义核心价值观融入民法典实践向度的具体方式和边界,有助于发挥社会主义核心价值观引领法治建设的重要作用。

两大法系背景下的制止不正当竞争保护

按照《保护工业产权巴黎公约》和《与贸易有关的知识产权协定》,制止不正当竞争是对人类某些智力活动成果保护的规则。在制止不正当竞争的保护方面,以法国和德国为代表的大陆法系国家,与以英国和美国为代表的英美法系国家,采取了不同的保护模式或做法,进而影响了相关国际公约的规定。我们应当在充分了解两大法系的保护模式和做法基础上,进一步修改我国《反不正当竞争法》,从事相关的学术和理论研究。

“民法总论”线上线下课程考核多维创新探析

在《深化新时代教育评价改革总体方案》指导下,融合线上线下教学、课程思政、应用型人才培养等教育新格局,紧紧围绕课程考核理念、主体、内容、方式等对“民法总论”线上线下课程考核方式开展现状考察、困境分析和革新路径探讨。为突破课程考核中的困境,着力明确“学生主动学习”“知识与能力并重”“以学生为中心的过程性评价”“教材与课外并举”“线上与线下同步”等多维考核理念,形成以“教学团队+学生+法律实训专家”共同体为考核主体、囊括“专业知识+课程思政+法律实务技能”多维考核内容的高校课程考核“考前—考中—考后”多维管理模式。