Civil Law Theory and Comparative Study of Systems

Author: Qu Tao
Publisher:
Publication Date: 2004-09-01
Features: This book is a collection of the author's main academic research papers since 1999. It includes 7 main papers and 8 appendix papers, where the appendix papers are supplementary or corresponding studies to the main papers. Among the 15 papers, 3 are new works, 1 is a Chinese version published domestically for the first time, 2 are translations of the original Japanese versions, and the rest are papers that have already been published domestically. The papers included in this collection have all undergone varying degrees of revision. The content of the papers primarily revolves around the legislative process of the Chinese Civil Code, covering research fields such as general civil law, property law, security law, customary law, and land law. The research methodology mainly involves comparative studies between Chinese and foreign systems. The book is divided into two parts: the first part focuses on civil law theory research, while the second part focuses on specific civil law systems. Below is a brief introduction to the research focus and main content of each paper.
Part 1, Paper 1: "Reflections on Civil Law Legislation Issues Raised by the Draft Chinese Civil Code" is a legislative comparative study conducted on the "Draft Chinese Civil Code" reviewed by the Standing Committee of the National People's Congress in December 2002. The earliest version was an impromptu short essay, which was later revised and submitted as a speech in both Chinese and Japanese to the "1st Asian Law Forum" organized by the Institute of Law, Chinese Academy of Social Sciences, on January 16-17, 2003, in Beijing. The author, as a visiting scholar to Waseda University funded by the Japan Society for the Promotion of Science, gave presentations on the same topic at various seminars organized by the "Chinese Social Sciences Research Association," Central University, and Doshisha University in Japan. During the presentation at the "Chinese Social Sciences Research Association," the organizer invited the renowned Japanese civil law scholar Professor Hagiwara Eiichi to serve as a commentator. This speech was well-received by Professor Hagiwara, who provided guidance in transforming it into a full paper. The paper was later published in the prestigious legal journal Jurist (Vol. 1249, 1250) as "The Formation of Academic Discussion on the Draft Chinese Civil Code (Part 1 & 2)" (July 5, 2003 / August 1, 2003). This paper is included as Appendix Paper 1 in this book. The main paper and Appendix Paper 1 are essentially two versions of the same paper but differ in several aspects. The primary difference lies in their target audiences. The Japanese version provides detailed explanations of specific issues and references relevant to the current state of research on the topic in Japan, making it longer, while the Chinese version is shorter. The author's research on this issue primarily explores the following questions through the lens of institutional design comparison:
1. Whether to adopt the German-style five-branch system.
2. The selection or rejection of Anglo-American legal systems.
3. The importance of adhering to the continental legal system.
4. Learning from the strengths of civil law systems in other countries while considering "compatibility" with national conditions and systems.
5. The significance of giving due weight to domestic customary law in civil code legislation.
6. In the context of global political multipolarity and economic globalization, it is particularly important today for Asian countries to seek commonalities in international political systems and regional economic coordination through legal institutional development. In this sense, it is very necessary to strengthen in-depth research on civil law in Asian countries and regions in the future.
Part 1, Paper 2: "The Proper Role of Customary Law in the Compilation of the Chinese Civil Code—With a Focus on Property Law Legislation" was originally published in Journal of Chinese and Japanese Civil and Commercial Law Studies (Vol. 1), edited by Qu Tao, published by the Law Press in February 2003. The basic framework of this paper was presented by the author at the "China-Japan Legal Scholars Symposium—Property Law and Civil Code Legislation" held at Waseda University in Japan on January 15-16, 2002. Later, the author wrote the paper in both Chinese and Japanese. The Japanese version was published in Waseda University Comparative Law Studies (Vol. 36, No. 2) in March 2003. Considering the differences in target audiences, the two versions published simultaneously were adjusted in specific content. The Chinese original has also been revised for this collection. The original Japanese paper is included as Appendix Paper 2. This paper first addresses the issue that customary law has not been given due attention in the drafting of China's Property Law and Civil Code legislation. It examines the role of customary law and customary law in the Civil Code, particularly in property law, through conceptual, legal effect, and legal reasoning analyses. Subsequently, it argues for the proper role of customary law in the legislative process of China's Property Law and Civil Code through three aspects: issues related to customary law in the existing Property Law draft, the history of customary law in New China and relevant academic research, and the current state of customary law in rural China (based on the author's field research). The research methodology primarily involves field research and institutional comparison, exploring the following key issues:
1. The urgency of Civil Code legislation should not overshadow the importance of customary law.
2. There are significant differences in the requirements for legal system consistency between the fields of circulation law and law, as well as between specific and general. In the field of civil law, especially contract law, there is a very high demand for international alignment; however, in property law, it can be said that regional requirements are even higher.
3. The true meaning of aligning with international practices lies in adopting common approaches used in various countries. In fact, from the civil law systems of various countries, it can be seen that compared to creditor systems, property, family, and inheritance systems all show a greater emphasis on domestic customary law. Therefore, only by accurately grasping this point can it be considered true international alignment.
4. In Civil Code legislation, consideration of customary law and customary law should take into account all aspects of social life, including urban and rural areas, general citizens, and merchants.
5. One of the major lessons China should learn from history is not to overlook the splendid cultural heritage left by its long history. Today, it is very important to reflect on the past "Chinese thought" as a representative of national essence, but at the same time, it is also necessary to guard against the phenomenon of excessive self-esteem from the Cultural Revolution era, which has now turned into excessive self-deprecation in society since the reform and opening-up.
6. How to view and treat customary law is essentially a question of how to differentiate and treat various types of national heritage. In the legal cultural heritage of China, there are both "positive heritage" and "negative heritage," as well as "neutral heritage," and these exist in the form of customs or customary law. First, it is necessary to accurately define the conceptual classification and specific classification of positive, negative, and neutral categories through in-depth analysis and research. Second, on this basis, through careful analysis and detailed argumentation, specific systems with practical value in positive heritage should be elevated to state law through statutory law. Negative heritage should be discarded as waste without reservation. Neutral heritage should be recognized within certain scopes and conditions as customary law.
Part 1, Paper 3: "A Historical Review of the Compilation of the Japanese Civil Code and the Reception of Its Doctrines" was originally published as one of the main papers of the "Special Symposium—A Century of the Japanese Civil Code," which the author organized, in the Global Law Review in the fall of 2001. The paper provides a detailed introduction to the history of the compilation of the Japanese Civil Code and the 100 years of civil law research in Japan, analyzing and studying the various issues that arose during this process. It also analyzes the historical significance of the Japanese Civil Code from aspects such as the abolition of extraterritoriality, the establishment of a unified capitalist market, and its impact on other Asian countries. Building on this, the paper compares the legislative history of the Chinese Civil Code after the reform and opening-up with the history of the Japanese Civil Code compilation to explore the following issues that should be noted in the formulation of the Chinese Civil Code:
1. The legal disputes over the Japanese Civil Code and the Chinese debates on civil and economic law reflect the "confusion" of different social strata to varying degrees, which is a phenomenon shared by both countries.
2. The drafting of the code draft in China and Japan may be said to have taken different paths but ultimately arrived at the same destination, from government-led drafting to drafting by legal experts.
3. In terms of legislation, both China and Japan moved from single acts to codification, but China's current Civil Code legislation should learn from Japan's hasty legislation in the past.
4. How to balance the relationship between introducing Western legal systems and traditional customs.
Part 1, Appendix Papers:
Appendix Paper 3: "New Research Trends on the Principle of Good Faith in Japan."
Appendix Paper 4: "Research on the Principle of Good Faith in Japan."
Appendix Paper 5: "The Role and Function of Civil Law in Today's Society as Seen from the Historical Development of Japanese Civil Law Doctrine." These three papers were originally prepared for the special symposium "A Century of the Japanese Civil Code" for the Global Law Review, but due to the limited space in the magazine, they were not published simultaneously. They were later published in Journal of Chinese and Japanese Civil and Commercial Law Studies (Vol. 1), edited by Qu Tao, and are included here due to their high relevance.
Part 1, Paper 4: "Reflections on the Private Law Attributes of the Right to Know—With the Historical Background of the Japanese Citizen's Right to Know" was originally commissioned by Professor Li Bu Yun for his research team on "Information Disclosure Systems." However, during the research and writing process, the author, as a civil law scholar, could not help but question the traditional view that the right to know is exclusively a subject of administrative law. Inspired by this, the author conducted research on the issue of the right to know in the private law sphere and the conceptual definition of the right to know in the following aspects:
1. The multifaceted nature of the right to know—public power (the right to know and the principle of popular sovereignty), personality rights (the right to know and personal privacy), freedom rights (freedom of information transmission and reception), and social rights (the relationship between business information and civilian life)—necessarily leads to the complexity of the right to know relationship.
2. The nature of the right to know has gradually evolved from a purely negative right into a composite positive right as society has developed. The social phenomena summarized in the right to know issue can also reveal the social basis for the interweaving of public and private law—i.e., the privatization of public law and the publicization of private law.
3. The concept of "duty to inform before treatment"—the right of patients to know their own medical conditions.
4. Other issues related to the right to know and private rights, including:
- The issue of information disclosure for state-owned and state-controlled enterprises.
- The issue of information disclosure for the media.
- The issue of information disclosure for local governments.
- The issue of expert liability.
5. The private law definition of the right to know—centered on the legal reasoning of the claim right, with the judgment standard for determining whether a claim right exists based on direct and indirect interests.
Part 2, Paper 1: "The Legal Environment of Chinese Social Organizations and Civil Law Corporate System Legislation—Introduction to the Corporate System" is a research topic the author has been working on in the past two years. The impetus for this research came from the author's opportunity to participate in the project "China's Social Organization Legal Environment," funded by the Dutch Embassy, which sparked the author's interest in studying the legal system of social organizations from the perspective of civil law. This paper takes the legal environment of social organizations as a starting point, examines the concepts of social organizations and legal persons and their historical presence in New China, as well as comparing them with relevant legislation abroad, to conduct a comprehensive study of the design of the corporate system in the Civil Code. Based on this, the author proposes specific suggestions for the institutional design. The conclusions of this research mainly involve the following aspects:
1. The legislation of social organizations and legal persons primarily involves two aspects: policy orientation and legal technology. The former is more reflected in the public law field represented by the Constitution, while the latter refers to the formulation of specific institutions in civil law. The legal environment of social organizations must be integrated from both policy choices and legal technology choices.
2. In terms of policy choices, it should align with global trends, relax entry mechanisms while strengthening supervision mechanisms. On this policy choice, the value orientation should emphasize the social costs of system and operation construction, and at the technical level, the capacity of legal persons should be divided into full-capacity legal persons and limited-capacity legal persons, thereby incorporating the broad concept of "third parties" into the corporate system.
3. Is the theory of the nature of legal persons still meaningful in China today? The theory of the nature of legal persons is merely a theoretical basis for policy choices. Although the various views in the theory of the nature of legal persons have different emphases in form, they all converge on one point: groups that exist between the state and individuals should be recognized as legal subjects. The social background in which these theories were discussed has long diverged from today's social conditions, so it is more realistic to say that the discussion centered on policy choices in the Japanese academic field is more meaningful.
4. The separation of politics, economy, and society in terms of functions is mutually reinforcing and promotes the diversification of legal subjects in society. However, to truly achieve this "separation" and "diversification," two factors are essential: a politically relaxed democratic environment and economic development, as only with these two factors can people's choices of behavior and organizational forms become diversified.
Part 2, Paper 2: "Civil Law System of Rural Land Property Rights in China" is also a research paper that has been published for the first time. The research "The Current State and Prospects of China's Land System (Appendix Paper 5)" was originally a report submitted by the author when invited to attend the 63rd Congress of the Journal of the Japanese Comparative Law Society (2001), and was later published in the society's magazine Comparative Law Studies 2001 (published in 2002). The manuscript has been revised and will be published again as a research report in the author's recent invitation to attend the 20th Congress of the Korean Land Law Society (October 2004). This Chinese manuscript is also being published for the first time. The author has long regarded the study of rural land property rights in China as one of his main research topics. The main achievements of this research include a paper titled "Research on Rural Land Property Rights in China," based on field research in China, which was published in Meiji University Law Review (Vol. 47, No. 4) in 1998. This paper is based on the above research and conducts research on the specific institutional design of rural land property rights in the current legislative process of China's Property Law. The author's basic ideas for this institutional design are as follows:
1. The definition of land property rights in China's Property Law should no longer rely on the vague concept of "collective ownership." It is recommended to adopt the concept of "co-ownership." The form of "universal co-ownership" should be used as the basis, and "joint co-ownership" may be adopted if conditions are met and more than two-thirds of local residents agree.
2. In terms of operational models, lessons should be learned from the era of people's communes to avoid a one-size-fits-all model. Whether it is the current "household responsibility system," the past "people's commune system," or the various operational models that exist in the real society, such as "shareholding cooperative systems," none of them can be a panacea for the vast rural areas of China. Therefore, the choice of operational methods should be recognized as an operational autonomy based on property rights.
3. To address issues such as the infringement of property rights to land due to the movement of people (e.g., women who marry out and men who marry in), it is recommended to clearly define joint operational relationships in the form of "joint co-ownership" (i.e., "partnership") in the Property Law, thereby recognizing the purchase claim or income claim of joint operators to the joining property upon withdrawal.
4. In terms of the publicity of operational rights to rural land, it is not necessary to uniformly adopt the method of real estate registration. Given that rural China belongs to a "community society," it is recommended to adopt more flexible publicity methods, such as recognizing various publicity methods recognized by local customs, in addition to real estate registration. Moreover, publicity should be adopted as a requirement for opposing rights and obligations in such property changes.
Part 2, Paper 3: "Revisions to the Japanese Security Interest Law System" is a research that introduces the major reforms of the Japanese security interest law system in recent years. Through a comprehensive introduction to this reform, the historical evolution of the concept of security law is revealed—from utility value-based security to exchange value-based security to income value-based security. The current reform of the Japanese security interest law system and the evolution of the concept of security law have high reference and value for China's Property Law legislation. The background of this research includes two papers: Appendix Paper 7: "Comparative Study of Security Interest Law Systems," and Appendix Paper 8: "Institutional Study on Real Estate Securitization." Appendix Paper 7 is a joint research achievement of Chinese and Japanese scholars, and the authors of the other several co-authors have kindly permitted its inclusion here. Appendix Paper 8 is a new type of security system that originated in the United States and recently landed in Japan. It can also reflect the new changes in the concept of security.
The above 15 papers record the author's research over the past four and a half years. They may not be considered "achievements," but they are definitely the author's "gains" after hard work. The purpose of compiling these gains is only for self-summary and reflection, and to accept criticism and guidance from teachers, senior scholars, colleagues, and future generations.