중국《民法總則》의 특징 및 그 초점문제에 관한 소고

Abstract

In March 15, 2017, the fifth session of the Twelfth National People's Congress of China successfully passed “the general provisions of civil law” of the people's Republic of China (hereinafter referred to as “the general provisions of civil law”). As a programmatic legal norm, “the general provisions of civil law”took the first step in compiling the codification of civil code and had milestone significance in the field of civil legislation in china. However, it should not pay too much attention to the construction of specific rules, but should be devoted to building the framework and the foundation for the whole civil legal system in china. As a model of democratic legislation and scientific legislation in contemporary China, “the general provisions of civil law” embodies distinctive features of the times. Mainly manifested as: First, inheriting and developing simultaneously, giving priority to innovation. “the general provisions of civil law” follows the legislative style of “the general civil law”, and embodies the innovative spirit of legislation while maintaining the continuity of the law. Second, both universality and nationality are based on national conditions. As a product of the market economy, the spirit of traditional culture of the Chinese nation throughout its entire, which can be widely used in the country. On the basis of fully integrating the basic national conditions, it has also made an organic selection of foreign legislative experience, which agrees with the latest legislative trends in China's reform and design. Third, the combination of principles and rules should be based on programmatic principles. “the general provisions of civil law” is a new thing, but it is by no means a new concept in the field of law. Therefore, we should not only unify it with “the general civil law” and other civil and commercial legislation, but also realize the organic combination of theory and practice. Since the reform and opening up, China has accumulated precious judicial experience in the process of modernization of the rule of law. On this basis and with the background of the times, “the general provisions of civil law” came into being. If China's “Constitution” establishes the principle of respecting and safeguarding human rights of the state which is a principled declaration to protect the rights of citizens, that the introduction of “the general provisions of civil law” is the embodiment and standardization of the protection of the basic rights of citizens.