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The 92nd Professor Salon: Professor Shi Jichun and Two Economic Questions in General Provisions of the Civil Law


Professor Shi Jichun started his speech with the two alterations of General Provisions of the Civil Law compared with General Principles of the Civil Law. The two alterations were General Provisions of the Civil Law abolished that civil act should comply with regulations of state policies. First, to be specific, the article 6 of General Principles of the Civil Law, which was ¡°civil activities must be in compliance with the Law; where there are no relevant provisions in the Law, they shall be in compliance with state policies¡±, was changed into article 10 of General Provisions of the Civil Law, which was ¡°civil disputes shall be resolved in accordance with the law; or if the law is silent, customs may apply, but not contrary to public order and good morals¡±. Second, General Provisions of the Civil Law changed the classification of legal persons. It classified legal persons into for-profit legal persons and non-profit legal persons. And special legal persons included state organs legal persons, rural collective economic organization legal persons, and basic self-governing mass organization legal persons.


Professor Shi Jichun thought there were two reasons for revoking the use of policies. The first reason was going back to the Republic of China. The second reason was worrying about the rule by men. The article 10 of General Provisions of the Civil Law was inherited from the Civil Law of Republic of China enacted in 1929. The latter part of this article was inherited from article 1, section 2 and 3 of the Swiss Civil Code. According to this article, legal principle referred to the judge¡¯s reference to generally accepted legal principles and practices, as if the judge was the legislator himself. In west countries, although the regulations and policies of the government had an explosive growth and were used universally in 1960s, the highly socialized economic and social conditions, which served as the source of the regulations and policies of the government, appeared in the late 19th and early 20th century. Actually, the legal principles in Swiss Civil Code were policies, which the legislators of the General Provisions of the Civil Law did not understand. The common law was case law, so it was born with the characteristic of policy. It can adapt to the social change gently and naturally. In the face of the socialization, continental law had to adapt to the change. The article 1 of the Swiss Civil Code was the origin of the use of policy in civil relation.

In fact, in some developed countries and China, law and policy were inseparable. There were the concepts of ¡°policy as law¡± and ¡°law policy¡± in Japan. Western Europe, Japan and America were all known as countries and areas with developed rule of law. Why did these countries still need policies instead of only following the law strictly? The reason lied in the high division of labor, closed cooperation, economic systematization, globalization rapid changes of the highly differentiated, highly integrated, highly complex society and the social conditions which took the lead and would move the whole body. Under this circumstance, the policy should be the guidance for the law. The policy in China had many forms. The origin of the policy was similar to the law. Law had many deficiencies and turning the law into policy can ensure the realization of the law. In fact, turning the law into policy and turning the policy into law were the demand and important characteristic of rule of law in modern society.







 
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