Civil Code General Principles

Author: Shi Shangkuan / Country:
Publisher:
Publish Date: 2000-03-01
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Excerpt 1) Extensive Interpretation. If the wording of a law is too narrow, adhering strictly to the wording would be an improper regulation. The meaning of the legal text should be expanded to determine the true intent of the rule. For example, Article 918(2) of the Civil Code states, "The beneficiary of a pawn right still has the same rights as the prior transferee." Although this provision does not mention obligations, the interpretation should include them. However, extensive interpretation is subject to limitations. A provision containing a limiting meaning cannot be subject to extensive interpretation. For instance, Article 194 of the Civil Code states, "If a person unlawfully harms another, causing death, the parents, children, and spouse of the victim, even if there is no property damage, may claim compensation for a reasonable amount." This provision is limited to the parents, children, and spouse of the victim having this right, and it cannot be extended to their brothers, uncles, or aunts for interpretation.
2) Restrictive Interpretation (Restrictive Interpretation). Also known as limited interpretation, it refers to narrowing the scope of the legal wording to interpret it. For example, the Civil Code stipulates that persons with limited capacity can act as agents (Civil Code Article 104). According to the literal interpretation, there can be both mandatory and voluntary agency. However, according to the argumentative interpretation, this agent specifically refers to voluntary agency.
3) Argumentum Contra Positum (Contrary Interpretation). It refers to applying an opposing rule to an opposing fact. For example, when one of two similar matters is regulated, and the other is not, the latter can be considered to produce an opposing result to the former. For instance, regarding the revocation of a statement made under fraud or coercion, only the revocation due to fraud is stipulated as not being enforceable against a bona fide third party (Civil Code Article 92(2)). Therefore, contrary interpretation should be applied, meaning the revocation due to coercion can be enforceable against third parties. Another example is Article 72 of the Civil Code, which states, "A legal act that violates public order or good customs is void." The reverse is that a legal act that does not violate public order or good customs, except for other reasons, should be valid.
4) Argumentum Fortiori (Of course Interpretation). It refers to a fact that has a stronger reason for applying a regulation than the one stipulated in the law. This is what the Tang Dynasty law referred to as "lifting the heavy to illustrate the light and lifting the light to illustrate the heavy." For example, a park prohibits picking flowers, and it is obvious that cutting down trees and picking fruits is prohibited. Prohibiting the passage of cattle and horses is even more so for larger animals like elephants. However, based solely on the observation of external weight, it cannot be immediately concluded as a natural interpretation. It should be determined based on the purpose of the regulation.
5) Analogical Interpretation (Analogical Interpretation). It refers to applying the provisions of a similar matter to an unregulated matter. Analogical interpretation is similar to extensive interpretation, but the two differ in nature. Extensive interpretation goes beyond the meaning of the legal wording, while analogical interpretation goes beyond the meaning of the law. Regarding the nature of analogy, there are different views in academia. Some argue it is new legislation, while others believe it should be considered an interpretation based on existing laws. However, analogical interpretation is the application of a principle to a specific event, rather than the creation of a new principle. Since analogical interpretation goes beyond the meaning of the regulation, it is difficult to call it an interpretation. It can only be sought from legal principles. Analogical interpretation includes:
(1) Statutory Analogy (Gesetzesanalogie). It refers to deriving a rule by removing less important conditions, making the basic concept more pure, and applying it to points that are not important and do not violate principles, differing from the law. For example, analogizing the protection of corporate names under Article 18 of the Civil Code.
(2) Legal Analogy (Rechtsanalogie). It refers to summarizing general principles from multiple legal provisions and applying them to unregulated matters. For example, deriving the general right not to act from Articles 18, 962, 767, and 795 of the Civil Code, and deriving the termination of a continuing debt relationship due to a major reason from Articles 489 and 686(3) of the Civil Code.