Civil Code General Principles: Present and Future

Author: (Taiwan) Tseng Shixiong
Publisher:
Publish Date: 2001-10-01
Features: The social life of human society exists in both public and private aspects, encompassing the social life of individuals as members of the nation and as members of society. The laws governing the latter are private law. The legal system of Taiwan adopts the civil law system, where laws are formulated in the form of codes and articles. Among the most important aspects of private law is the Civil Code. Those engaged in legal studies or legal practice generally share a common belief that the Civil Code is beautifully written and appropriately structured. This belief naturally also exists regarding the General Principles of the Civil Code. The beauty of the Civil Code's language is undeniable when compared with various legal provisions. However, whether literature is beautiful is not an absolutely important matter; it is merely relatively important. The absolutely important matter of the Civil Code, like other provisions, lies in whether its content is appropriate and well-structured. The appropriateness of the General Principles of the Civil Code involves two issues: one is the examination of whether the existing provisions of the General Principles of the Civil Code are appropriate, and the other is what content the General Principles of the Civil Code should regulate. The former belongs to the issue of interpretation of the meaning of the General Principles of the Civil Code, while the latter concerns the necessary framework of the General Principles of the Civil Code. There are three motivations for writing this book: 1. The French Civil Code was enacted in 1804, nearly two hundred years ago. The German Civil Code has been in effect since 1900, also nearly a century long. The French Civil Code influenced the German Civil Code, which in turn flowed into the Civil Code of Taiwan. The civil laws of France and Germany are the crystallization of hundreds of years of wisdom. Can we still rely on them and not surpass them today after a century has passed? 2. Taiwanese legal discourse is accustomed to using foreign doctrines as a basis, with little original development. The reason for this situation is partly that the Civil Code is nearly a direct import, and partly that the rise of comparative law has influenced it, leading to the popularity of introducing foreign doctrines. However, since the Civil Code has been in effect, it has accumulated considerable experience. Examining the original provisions with the help of this experience is necessary and not difficult. Only in this way can the door to the development of original legal theory be opened. 3. In codified countries, laws are based on text, but the provisions of laws are the result of legislative votes, which may not be rigorous or accurate. Observing the court judgments and scholarly discussions since the implementation of the Civil Code, there is a tendency to focus on textual interpretation to deduce legal theory, which may lead to an overemphasis on textual interpretation and the risk of "law leading legal theory." This trend is harmful to the development of legal theory. Therefore, it is necessary to reverse the current trend to emphasize the development of legal theory, otherwise, the era of "legal theory leading law" will never return. The General Principles of the Civil Code were formulated, promulgated, and implemented in 1929. Whether their structure and provisions are appropriate has been tested over half a century and has become clear. Even if the structure and provisions of the initial formulation and implementation were considered reasonably perfect, it is questionable whether they remain appropriate after the dramatic changes in social life. Although it was once amended and promulgated in 1982 and implemented in 1983, this amendment had little value. Since the amendment did not thoroughly resolve some of the previously identified inappropriate issues, the question of whether the provisions and structure of the General Principles of the Civil Code are appropriate still exists. This book takes these two issues as its object, discussing them alternately. It offers a critique of the current provisions of the General Principles of the Civil Code and proposes a blueprint for their future structure.