why should we compile the civil code?
(1) the significance of the civil code
1. The need for codification and systematization of laws. There are many civil laws and regulations in China, more than 25. As these laws were formulated in different periods and stages, they more or less reflected the social needs in different periods and stages, as well as the considerations of legislators at that time, lacking overall consideration, it is inevitable that there are inconsistencies and conflicts between systems. And a systematic and complete code can greatly promote the systematization of civil legislation.
2. Effectively improve the modernization of the national governance system and governance capacity. The content of the Civil Code is to comprehensively govern the country according to law, and the rule of law is the main content. The eight words are summarized as "standardizing public rights and safeguarding private rights". Standardizing public rights and putting power into the cage of the system, the civil code fully guarantees private rights, laying a solid foundation for comprehensively governing the country according to law; Safeguarding private rights provides certain standards and basis for standardizing public rights. Protecting private rights is conducive to standardizing public rights.
3. The rule of law is conducive to improving the market economy. Civil code comes from the soil of market economy, which in turn adjusts and regulates the activities of market economy and maintains the order of market economy. The principles of honesty, equality, credit and voluntariness are the most basic principles of market economy. The system of real right and creditor's right is two basic pillars of market economy; Property right and contract are two basic rules of market economy. The promulgation of the Civil Code has greatly improved the legal rules of the market economy and effectively improved the business environment.
4. provide a beautiful guarantee for the people's happy life.
5. It is conducive to the realization of fair justice and administration according to law. The civil code is convenient for judges to find laws, and a systematic civil code is conducive to ensuring that judges are judged in the same case and justice.
(2) the innovation of the civil code system. Part VII of the Civil Code: General Provisions, Property Rights, Contracts, Personality Rights, Marriage and Family Inheritance and Tort Liability
1. Compared with the civil codes of traditional civil law countries, what they don't have is the function that personality rights and tort liability are compiled independently, and the general provisions of debt law are replaced by contract compilation.
2. Characteristics of China's civil code system:
(1) The system is rigorous-all seven chapters are centered on the confirmation and protection of civil rights. The general provisions stipulate the basic rules, including the rules of subject, exercise and protection of civil rights; The remaining six parts are all about civil rights;
(2) The structure is reasonable-the value concept of paying attention to humanistic care and showing humanistic spirit is implemented. System system is one aspect of systematization, while value system is the other, which pays attention to humanistic care and shows humanistic spirit. Montesquieu's famous saying: In the motherly eyes of the Civil Code, everyone is a country. Taking humanistic care as the basic value concept.
(3) the civil code is a feature of the times and an institutional innovation, which provides legal guarantee for the people's happy life in the new era.
after 4 years of reform and opening up, the main contradiction in today's society has been transformed into the contradiction between the people's growing need for a better life and the unbalanced development. The people's spiritual needs for democracy, the rule of law, fairness, justice, security and the environment are even stronger, not only to meet material needs, but also to affirm the people's personal dignity, fully protect citizens' personal rights and personality rights, and implement the tasks reported in the 19th National Congress.
A few simple examples:
1. It is the first time in the Civil Code to put forward the peace of private life-citizens' right to privacy includes peace of private life, which is the basic need for a better and happier life. It is forbidden to sneak a sneak shot and peek, and it is forbidden to harass by phone messages. Protecting personal information includes not only information that can identify identity characteristics, but also personal whereabouts information, such as location information.
2. Strengthen the protection of property rights. Protecting property rights means protecting people's livelihood. For example, the system of residence right is added to the real right series to meet the people's needs of "living and living", which means ensuring people's long-term stable residence right and is conducive to solving the people's long-term stable residence needs; The contract stipulates the lessee's priority to lease; There are many clauses in the contract to protect the rights of the owners, and the chapter of property contract is specially set up as a typical contract. The Civil Code responds to the needs of people in the era of high-tech development-the threat of big data to personal information and privacy in the high-tech era makes everyone a "transparent person" and a "naked person". The biggest problem encountered by the law is how to strengthen the protection of personal data and personal privacy. This is also the reason why the personality right of the civil code is compiled independently. For the protection of human biometric information, such as human genes, human embryo research activities, etc., the law must set the necessary bottom line rules: one must and three must not-that is, it must be legal, not harmful to human health, not contrary to ethics, and not harmful to the interests of the public. There are still many clauses in the compilation of personality rights related to the requirements of the high-tech era of the Internet, such as voice, which involves identity speech recognition; Such as portraits, ai changed his head. In the future, special laws may be needed to make specific provisions.
3. The Civil Code responds to the needs of the times for environmental and ecological protection brought about by the deterioration of resources and environment. The 21st century is an era facing serious ecological crisis. Air pollution, black and odorous water bodies, garbage besieged cities and other people's livelihood are harmful to people's happy life. The general secretary said that a good ecological environment is the most inclusive welfare of people's livelihood. Tort liability specifically increases the responsibility for ecological damage (only the responsibility for environmental pollution in tort liability law).
4. the civil code responds to the needs of the times in a risky society. Risks are everywhere. How to remedy the damage caused to the victims by various risks? The independent compilation of tort liability is to respond to the needs, strengthen the protection of victims and punish infringers in a risky society. Such as high-rise buildings (high-altitude) parabolic damage, high-altitude parabolic can not find the infringer. First of all, the civil code clearly stipulates that everyone has a legal obligation not to throw objects from high altitude, and those who violate this obligation will bear legal responsibility; Secondly, after the incident, it is emphasized that the relevant authorities should find out the person responsible in time according to law; Third, the property should fulfill the obligation of security; Finally, if it cannot be found, the user of the building who may harm it shall bear the appropriate compensation responsibility.
(D) effectively reflects the new situation and new problems of reform and opening up.
effectively responded to the development needs of market economy, strengthened the protection of property rights, guaranteed the legitimate rights and interests of owners, strengthened the improvement of business environment, revised and supplemented the guarantee system to meet the needs of rural reform, and stipulated the right to operate.
(5) to meet the requirements of the development of the times, keep pace with the times, proceed from the reality of China and learn from the experience of the two legal systems, and construct the system and rules with China characteristics, which can be described as a good law. However, the vitality of the civil code lies in its implementation. As the ancients said, it is not difficult to legislate, but it is difficult to enforce the law. Transforming the law on paper into the law in reality provides institutional guarantee for the comprehensive rule of law and the long-term stability of the country.
to be continued …