중국 민법학의 역사회고와 전망

Abstract

Chinese civil law was not produced in the mainland but accepted from the West in the early 20th century. In the civil law system in the Continental Law, the term "adoption" indicates a people or a nation adopts a legal system of another nation to possess and use the system based on its autonomous decision. The difference between adoption and so-called "legal transplantation" lies in the emphasis on the "autonomy" of the nation accepting the legal system. Because of this reason, scholars of Chinese civil law habitually use "adoption." A century before, Chinese nation adopted foreign civil law, facing the government dissolution by the foreign Great Powers at the urgent point of nation ruin and downfall, in order to prevent abolition of consular jurisdiction and nation downfall and to restore its independence. Due to the adoption, China established a novel civil law system and a scholar department of civil law, and international interchange became possible with Chinese civil law and its theories. Under the adoption of German civil law, the conceptions, principles, institution, and theoretical systems of civil law were already rooted, blossomed, and then came to fruition, were fused into Chinese society to present the foundation of Chinese legislation, judiciary, study, and theoretical researches, and formed the basis of legal convention and culture in China. The contents of this study may be divided into five categories:① the birth and earlier development of Chinese civil law(1900-1949); ② the conversion, stagnation, and death of Chinese civil law(1950-1977); ③ the rebirth and development of Chinese civil law(1978-); ④ the progress in Chinese civil law; and ⑤ several problems related to major development of Chinese civil law.