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Constitutionality of Legal Application—Taking the Determination and Legislative Prospect of Essential Tort Law as an Example

  • Zhu WangEmail author
Chapter

Abstract

Some scholars believe that, all the laws adopted by NPC and its Standing Committee can be deemed as basic civil laws. What can be deduced from this opinion is that, whether the Tort Liability Law is adopted by NPC as a basic civil law will not affect the application of such law. The Writer can’t agree with such opinion. As mentioned above, the demonstration of constitutionality of legislative procedure for the Tort Liability Law reveals that, the Tort Liability Law is not a basic civil law within the meaning of the Constitution, and the Real Rights Law, and the Contract Law which is deemed as basic civil law by default is also faced with such dilemma. With the promulgation of the General Provisions of Civil Law, this dilemma relating to status of law will bring about more complicated problem relating to application of law. In the following sections, this Writer will start with the status of the Tort Liability Law as a non-basic law, interpret the problem relating to application of law brought about by the dilemma in status of law, try to find the application-of-law norm route for the transitional period when the Civil Code is being compiled, and forecast the constitutionality of legislation of essential tort law in future.

References

  1. Huang Maorong, Law Method and Modern Civil Law, Law Press, 2007.Google Scholar
  2. Karl Larenz, Methodology of Law, translated by Chen Aie, the Commercial Press, 2003, p. 138.Google Scholar
  3. Li Jianguo, the Explanation of the Daft of the General Provisions of Civil Law of the People’s Republic of China, at the Fifth Session of the Twelfth National People’s Congress on March 8th, 2017.Google Scholar
  4. Qiu Congzhi, General Rules of Obligation Volume of Newly Revised Civil Law (Volume II), China Renmin University Press 2004.Google Scholar
  5. Shi Hong, ed. Clauses Interpretation, Legislation Reasons and Relevant Provisions of the General Principles of Civil Law of People’s Republic of China, Peking University Press, 2017.Google Scholar
  6. Su Yongqin, Economic Rationality in Autonomy of Private Law, China Renmin University Press, 2004.Google Scholar
  7. Wang Zhu, “An Investigation into the History of ‘Fair Liability’ of Chinese Tort Law”, Journal of Gansu Political and Legal College, No. 2, 2008.Google Scholar
  8. Wang Zhu, Theory of Apportionment of Tory Liability, China Renmin University Press 2009.Google Scholar
  9. Wang Shengming, Interpretations of the Tort Liability Law of the People’s Republic of China, China Legal Publishing House, 2010a.Google Scholar
  10. Wang Zhu, “On the Abolishment of the Living expenses of Dependent Person”, Chinese Social Science Today, Nov. 4th, 2010b.Google Scholar
  11. Wang Zhu, “Interpretation of Constitutionality of the Legislative Procedure of Tort Liability Law”, Legal Science Monthly, No. 5, 2010c.Google Scholar
  12. Wang Zhu, “On the Method of Determining Ultimate Liability in Apportionment of Tort Liability between Multiple Tortfeasors”, Studies in Law and Business, No. 6, 2010d.Google Scholar
  13. Wang Zhu, “On the Right of Contribution in Joint and Several Liability– With Comment on the Mode of Redistribution of the Share of Insolvent Jointly and Severally Liable Tortfeasor”, Law Science, No. 3, 2010e.Google Scholar
  14. Wang Zhu, “On the Determination of Tort Law in Substance and Legislation Prospect”, Journal of Sichuan University (Social Science Edition), No. 3, 2011.Google Scholar
  15. Wang Zhu, “ Study on Application of Comparative Fault in Special Tortious Acts—Based on Stipulations from Chapter Six to Ten of Tort Liability Law”, Journal of Henan Administrative Institute of Politics and Law, No. 1, 2012.Google Scholar
  16. Wang Zhu, “Analysis of the Liability of Marketing Participators of Defective Food and Pharmaceutical Product in China’s Torts Law—Comments on Relevant Provisions of Opinions of the Supreme People’s Court Concerning Certain Issues of Food and Pharmaceutical Product”, Renmin University Law Review, No. 1, 2014.Google Scholar
  17. Yang Lixin, “On the Nature of Damage Compensation for Wrongful Registration of Real Estate”, Modern Law Science, No. 1, 2010.Google Scholar
  18. Zhang Wenxian, Jurisprudence, Law Press, 2007, p. 141.Google Scholar
  19. Zhu Yan, Tort Law, Law Press, 2011, p. 72.Google Scholar

Copyright information

© China University of Political Science and Law Press 2020

Authors and Affiliations

  1. 1.Law SchoolSichuan UniversityChengduChina

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