Private Law Research (Volume 3)

Author: Wu Handong
Publisher:
Publish Date: 2003-11-01
Features: With the deep appreciation of our readers, as this journal enters its third volume, its distinctive features have become somewhat apparent. Given the vast expanse of the private law domain, its connotation can only be absorbed in a gradual, encroaching manner. Each issue focuses on a specific issue within the private law field, publishing relevant articles. The selection of topics aims to address the focal points of academic discussions, while the selection of articles seeks to stand at the forefront of academic research. Though our ambitions may exceed our capabilities, we still clearly demonstrate our dedication to private law. In the private law system of civil law countries, tort law cannot be said to hold a prominent position; it merely has a place under the eaves of the grand structure of "civil law." Yet, this long-neglected field has stirred a great uproar in the process of drafting the Chinese Civil Code: the independence of tort law as a separate chapter, the independence of personality rights law as a separate chapter, the restructuring of the debt law system, the abolition or retention of the general principles of debt law, and so on, are all closely related to tort law. What is the true nature of tort law? Based on this question, we have organized a "Tort Law Special Issue" in this issue, consisting of 8 articles totaling over 200,000 words. In this special section, Professor Zhang Xinbao, who serves as the Director of the Institute of Tort Law at Zhongnan University of Economics and Law, has written the article "A Study on the Legislative System of Tort Law," which comprehensively compares the legislative systems of tort law in the civil law countries' civil codes, analyzes the advantages and disadvantages of various systems, and draws the insightful conclusion that "the majority of civil codes (excluding the German legal system) adopt the legislative model of a general clause for tort liability." The article also analyzes several domestic designs for the system of tort law, highlighting the understanding of tort law's legislative system among Chinese scholars. Finally, the author proposes the idea of designing the structure of tort law in the Chinese civil code based on the principle of "a comprehensive general clause with a comprehensive enumeration," which holds significant reference value for considering the structure of tort law in the civil code. Professor Fred Froom, a renowned deceased American scholar, published the article "Does Tort Law Have a Future?" in 1984, which is undoubtedly a classic work in the development of tort law. It plays a crucial role in bridging the gap regarding the "crisis" of tort law. The "crisis" of tort law, which began in the late 1970s in Western countries, dealt a fatal blow to the development of tort law. Amidst a pessimistic and depressed atmosphere, Professor Froom meticulously analyzed the causes of this so-called "crisis," compared the special compensation system and the comprehensive compensation system that impact tort law, and proposed the view that various accident relief mechanisms should coexist and develop, powerfully answering the question of whether tort law has a future. Professor Froom was born in Germany in July 1919 and passed away in the United States in September 1997. He dedicated his life to tort law research, and his book The Law of Torts has been revised nine times since its first publication in 1957, becoming a reference book for law students in the common law system. We chose to translate and publish this article in China for the first time to commemorate the sixth anniversary of his passing. Another translation in this special issue is "Personal Injury and Social Policy" by Professor Sugiman, a contemporary renowned expert in tort law. The article analyzes the development of relief mechanisms for personal injury, an ancient form of tort, from both the institutional level and the perspective of social ideology. It compares the four existing relief mechanism models for this form of tort and proposes that a social insurance model aligned with government management will be the best choice for the future development of tort law, showcasing the highest achievements in this field of research. This complements Professor Froom's "Does Tort Law Have a Future?" The article "Tort Law in Roman Law" by Dr. Ma Changhua begins with the early manifestations of tort law in Roman law and analyzes the conceptual evolution of tort law. The author argues that recognizing tort as a cause of debt was a historical misunderstanding on the part of the Romans and concludes that the true nature of tort law should be that of a liability law, providing a historical foundation for the independence of tort law as a separate chapter. The other articles in the special issue are: Dr. Zhao Jiayi and Mr. Jin Hai's "Generalization and Typification of Civil Liability for High-Risk Activities and Legislative Choices in China," which demonstrates that high-risk liability, as the most active branch of tort law, has strong elements of social policy in legislative choices; Professor Qu Maohui and Mr. Huang Jin's "Damages for Loss of Labor Ability," which clearly proposes a method for compensating for the loss of labor ability; Dr. Yu Yaojun's "Innovation in Civil Relief Systems for Environmental Harm," which discusses civil liability for environmental infringement, offering a broad perspective, novel angles, and considerable creativity; Dr. Zhang Min'an's "A Study on the Bases of Civil Liability for Torts in France," which presents the latest developments in French tort law. "Civil Code Research" remains our main column, and the above tort law special issue is merely one of its sub-columns. This issue features three articles, both on the macro level of civil code drafting and on the micro level of specific institutional designs. Professor Ma Junju's "Views on Several Key Issues in the Drafting of the Chinese Civil Code" presents the author's stance on many issues in the process of drafting the civil code from a macro perspective, along with many specific suggestions. Notably, the author proposes a personal design for the system of the code, which indeed has its own distinctive features compared to existing drafts. Professor Wu Handong's "Compilatory System of Intellectual Property Law and the Drafting of the Civil Code" provides an in-depth analysis of the relationship between intellectual property and the civil code, proposing that intellectual property should only be outlined as principles in the civil code, while special laws on intellectual property should still be retained. This offers a solid theoretical foundation and concrete design suggestions for the arrangement of intellectual property law in the Chinese civil code. Mr. Han Qinghuai's article "Reflections on Whether the Chinese Civil Code Should Establish a Priority System" is a suggestion for the specific institutional design in property law, offering a certain degree of novelty. "Private Law Special Issue" is one of our larger columns, providing a relatively unrestricted space for outstanding works within the field of private law. The three articles selected for this volume are all outstanding works in their respective fields. "The Legal Status of Animals" is a powerful work by Professor Steven M. Wise, a leading scholar in animal rights research in an English context. The article extensively analyzes the legal status of animals, demonstrating that in existing legal systems, animals are treated as objects of law. However, this is based on the assumption that the universe is a large biological chain. When the rationality of this assumption is questioned, the legal object status of animals loses its justification. Professor Wise not only deeply analyzes the weaknesses of the theories supporting the legal object status of animals but also, through compelling arguments, concludes that animals must inevitably obtain legal rights and enjoy subject status. This article is published in the Chinese language for the first time with the author's permission, hoping to open new paths for theoretical exploration for interested readers. Due to its length, the article is published in two parts in this issue, and we kindly ask our readers to wait for the second part. When the elderly population reaches 10%, the country is considered to be aging, and 21st-century China has entered the era of aging. Associate Professor Liu Yinling's "Research on Population Aging in the 21st Century China and Related Legal Issues" pioneers legal thinking on population aging, making the topic highly contemporary. Dr. Ning Hongli and Mr. Geng Yi's "Research on the Risk-Sharing System in the Contracts Chapter of the Civil Code" analyzes the general principles of risk-sharing, risk-sharing in sales contracts, and risk-sharing in other contracts. It is a well-argued and thoroughly analyzed paper, particularly the exploration of the general principles of risk-sharing in the contracts chapter, which is enlightening. The "Intellectual Property" column features two articles: Professor Zhang Jin and Mr. Chen Jian's "On the Impact and Role of Intellectual Property Law on Property Law," and Professor Cao Xinming's "Measures for Protecting Copyright in the Digital Age." Both studies address focal issues in intellectual property law. The former compares and analyzes the characteristics of intellectual property and property law; the latter discusses the development trends of copyright protection in the digital age. Both articles provide valuable references for improving China's intellectual property legislation. When editing the manuscripts for this volume, the "Draft of the Civil Code of the People's Republic of China" proposed by the Legal Affairs Commission of the National People's Congress was under public discussion. Looking back at the articles in this volume, most are related to the drafting of the civil code, and many of the views in the articles differ from the draft proposal of the Legal Affairs Commission. Reflecting on these articles, perhaps this is, to some extent, an objective response of the academic community to the official draft proposal of the civil code.