Abstract
The first three drafting processes of Civil Code and the deliberation of every volume of fourth drafting of Civil Code reveal that, the civil law scholars of several generations have made unremitting efforts for scientifically compiling the Civil Code, but the Legislatures is seldom found in democratically drafting the Civil Code. Since the fourth drafting of Civil Code, every draft is the indoor draft independently prepared by the Civil Law Office of NPC Legislative Affairs Commission, and it’s not drafted scientifically and democratically. The public solicitation of opinions on the Real Rights Law (draft) would be a historic progress, but was involved in the event of violation of the Constitution.
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Notes
- 1.
For the “indoor draft”, See Xu (2005).
- 2.
Civil Code of Ethiopia, trans. by XUE Jun, Law Press, 2000, p. 17.
- 3.
Xu (2002).
- 4.
The General Provisions of the Civil Law has shown such tendency in the legislation process. On the website of the Standing Committee of NPC, on July 5, 2016, the General Provisions of Civil Law of the People’s Republic of China (Draft) (draft for solicitation of opinion in first deliberation) was published. On November 18, 2016, the General Provisions of the Civil Law (draft for solicitation of opinion in second deliberation) was published. On December 17, 2016, the General Provisions of the Civil Law (draft for solicitation of opinion in third deliberation) was published. The three drafts is made public during the whole process and it deserves commendations.
- 5.
The Writer translates “科学地 (scientifically)” into “substantially” to achieve the free translation purpose.
- 6.
Article 40 of the Organic Law of the National People’s Congress provides that “Deputies to the National People’s Congress must observe the Constitution and the law in an exemplary way, keep state secrets and, in the course of production, other work and the public activities in which they take part, assist in the enforcement of the Constitution and the law”.
- 7.
Therefore, the Writer also approves of Director Wang Shengming’s understanding (Wang Shengming deems that the Tort Liability Law is the detailing, supplement and improvement of the General Principles of Civil Law and other laws). As the transitional civil basic law, General Principles of the Civil Law should not act as the legislative basis of every volume of the future Civil Code. Therefore, every volume of the Civil Code does not have to regard the General Principles of the Civil Law as the legislative basis. This is the convention of civil legislation of China.
- 8.
See Wang (2006).
- 9.
See Lin (2002).
- 10.
See Yang and Wang (2008).
- 11.
References
Lin Yan, “On Anomie of the Authority to Amend Basic Laws and its Reason”, Law Science, No. 7, 2002.
Wang Liming, Scholar-proposed Draft and Legislation reasons of Chinese Civil Code: Personal Rights volume. Marrige and Family Volume. Succession Volume, Law Press, 2005, pp. 189–192.
Wang Zhu, “On the Constitutionality of General Provisions of the Civil Law and the Draft of Real rights law—to Keep the Essential Real Rights Law as Core”, Renmin University Law Review, No. 3, 2006.
Xu Guodong, “The Ethiopia Civil Code: A Result of Two Reforms Collision”, Law Science, No, 2, 2002.
Xu Guodong, “Two Institutions of the Green Civil Code”, Journal of Fujian Normal University (Philosophy and Social Science Edition), No. 1, 2005.
Yang Lixin, China Personal Right Law Legislation Report, Intellectual Property Publishing House, 2005, pp. 501–504.
Yang Lixin, Wang Zhu, “Article 166 and 167 of Real Rights Law from the Perspective of Hermeneutics”, Journal of Henan Administrative Institute of Politics and Law, No. 1, 2008.
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Wang, Z. (2020). Awareness of Constitutionality in the Compilation of Civil Code. In: On the Constitutionality of Compiling a Civil Code of China. Springer, Singapore. https://doi.org/10.1007/978-981-13-7900-0_2
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DOI: https://doi.org/10.1007/978-981-13-7900-0_2
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