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 vastness of the private law domain, its essence can only be gradually absorbed, like a silkworm devouring mulberry leaves. 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 attempts to stand at the forefront of scholarly 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 China's 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, this issue features an "Issue on Tort Law," comprising 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, contributes the article "A Study on the Legislative System of Tort Law," which comprehensively compares the legislative systems of tort law in civil law countries' civil codes, analyzes the strengths and weaknesses 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 on tort liability." The article also analyzes several domestic designs for the system of tort law, highlighting the understanding of scholars in China regarding the legislative system of tort law. Finally, the author proposes the principle of "a comprehensive general clause with a comprehensive enumeration" to design the structure of tort law in China's civil code, which holds significant reference value for considering the structure of tort law in the civil code. The late renowned American scholar Professor Fremy 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 pivotal 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 Fremy, with extensive references, 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 Fremy was born in Germany in July 1919 and passed away in the United States in September 1997. He dedicated his life to the study of tort law. His book The Law of Torts has been revised nine times since its first publication in 1957 and has become a reference book for law students in the common law system. We selected and translated this article for its first publication in China to commemorate the sixth anniversary of Professor Fremy's passing. Another translation in this special section is "Personal Injury and Social Policy" by the contemporary renowned tort law expert, Professor Sugiman. The article analyzes the development of relief mechanisms for personal injury, one of the oldest forms of torts, from both the institutional level and the perspective of social ideology. It compares the four existing relief mechanism models for this form 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 Fremy's "Does Tort Law Have a Future?" in a mutually beneficial way. Dr. Ma Changhua's article "Tort Law in Roman Law" 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 historical support for the independence of tort law as a separate chapter. The other articles in the special section 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 dynamic 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 Basis 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 special section on tort law is merely one of its sub-columns. This issue features three articles, covering both macro aspects of the civil code's drafting and specific institutional designs. Professor Ma Junju's "Views on Several Key Issues in the Drafting of China's Civil Code" presents the author's stance on many issues in the drafting process 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 "Compendium 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 specific design plans for the arrangement of intellectual property law in China's civil code. Mr. Han Qinghuai's article "Reflections on Whether China's Civil Code Should Establish a Priority System" offers suggestions for specific institutional designs in property law, which holds a certain novelty. The "Private Law Special Section" 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-speaking 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-speaking world for the first time with the author's authorization, and we hope it will open new paths for theoretical exploration for interested readers. Due to its length, the article is divided into two parts for publication, and we kindly ask our readers to wait for the second part. When the elderly population reaches 10% or more, the country is considered to be aging, and 21st-century China has entered the era of aging. Associate Professor Liu Yinling's article "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 article "Research on the Risk Allocation System in the Contracts Chapter of the Civil Code" analyzes the general principles of risk allocation, risk allocation in sales contracts, and risk allocation in other contracts. It is a well-argued and thoroughly analyzed paper. Especially noteworthy is the exploration of the general principles of risk allocation in the Contracts Chapter, which offers valuable insights. 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 key 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, it coincided with the public discussion of the draft "Civil Code of the People's Republic of China" proposed by the Legal Affairs Commission of the National People's Congress. 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 proposals of the Legal Affairs Commission. Reflecting on these articles, it may be that this is, to some extent, an objective response of the academic community to the official draft proposals for the civil code.