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Professor Luo Kun Gave a Lecture on the 476th Civil-commercial Law Frontier Forum: Compilation of Civil Code in the Judicial Responsibility System

  On the evening of December 14th, 2018, the 476th civil-commercial law frontier forum and the 14th AnTong forum titled "Compilation of Civil Code in the Judicial Responsibility System" was held in room 708 of Mingde Building in Renmin University of China (RUC). Prof. Luo Kun of Wuhan University Law School gave a keynote speech. Yi Jun, the professor of Civil, Commercial and Economy Law School of China University of Political Science and Law, Zhou Youjun, the professor of Beihang University Law School, Prof. Shi Jiayou and associate professor Xiong Bingwan of RUC attended the forum and participated in discussions. The forum was hosted by Lu Jiahao, the doctoral candidate of the law school of RUC.
  After introducing four guests and showing gratitude to all attendees, Prof. Luo Kun delivered a wonderful report from the aspects of judicial responsibility system and its influence on legislation, the law system under the perspective of unified judgement, sources of civil law, specific institutions and so on.

  First, Prof. Luo analyzed the judicial responsibility system and its influence on legislation and identified the unified judgement was not only a judicial problem but a legislative one. However, due to the obscurity of current law and lack of theory agreements, it was substantially essential to make legislation scientific, systematic, clear and stable under the background of judicial responsibility system.
  Then, the professor introduced the law system under the perspective of unified judgement and mainly emphasized we should learn from the issue of General Provisions of the Civil Law of the People,s Republic of China based on the relationship between personal rights part and other parts of civil law system, as well as the general provisions of contract part and general provisions of the civil law. He asserted that the enforcement law of civil law code and the relevant systematic rules for the repeal, reform and establishment of laws, regulations and judicial interpretation were supposed to be carried out simultaneously.
  Finally, the professor mentioned the sources of civil law under the perspective of unified judgement. In his opinion, the sources of civil law were always difficult to find, for example, the spontaneous application of cases and the covertness of the documents having the nature of judicial interpretation of local courts. Later he demonstrated how to overcome the covertness of the sources of law from various aspects including the range of application of the contract part of General Provisions of the Civil Law, the validity of the appointment system and no disposition right contracts and the termination of payment by installments.
  During the discussion, Prof. Shi Jiayou agreed with Prof. Luo's views and thought judicial responsibility system and the compilation of civil code was really a novel and related perspective. On this basis, Prof. Shi emphasized that the definiteness of law was an essential characteristic of modern law and the validity of the law itself was unrelated to its practical effect on the society. He recommended students to refer to Herbert Harts theory of primary rules and secondary rules. Then, he raised questions to the problem concerning no disposition right, analyzing that the only difference between agency and no disposition right was whether "in the name of others".

  Prof. Yi Jun said Prof. Luos speech was rich in content and informative. Having considered theory and practice, Prof. Luo discussed the institutional construction from both macrocosmic and microcosmic perspectives. Prof. Yi also recognized the views of Prof. Luo, he thought the judicial, legislative and academic branches should interact positively, which meant judiciary and legislation would affect each other and the latter one would seek resources from the former one. In order to make sure the good operation and unified judgement of judiciary, we were supposed to initiate good law first. Meanwhile, he proposed two questions: the first one was about the adjustment objects of the Article 2 of Contract Law of the People,s Republic of China. When it came to whether guardship should be absorbed into the contract law, Prof. Yi thought different legislative styles would always confront various questions and it would appear exclusion provision once absorbed into the contract law. The second one was about no disposition right. From his perspective, the relevant judicial interpretation of the Supreme People's Court violated naïve feeling of law, but it was advanced simultaneously as it could coordinate with liability of security against defect of right.

  According to Prof. Zhou Youjun, Prof. Luo reflected legislation from a novel and sound perspective and thought profoundly. First, he asked whether the long-term legislative restraint mechanism could reach the goal of compiling a great code? In his opinion, the unified judgement should be the unity of conclusions. At the same time, he raised the second question: what was the relationship between unified judgement and the inner conviction and free judgement of every judge? Finally, he summarized that the form of law order was related to three factors: legislation, judiciary and theories. The good law was the foundation, which was the impetus for the other two, and the form of community of legal persons was a perfect condition for developing civil law order.

  Prof. Xiong Bingwan mainly talked about how to make unified judgement. He shared two ways: one was a compulsory approach and the other was the pursuit of fair and transparent procedures. In light of the diversity of life scenes and value orientations, he maintained that the second way was more feasible. Then, he mentioned that the judicial philosophy had a thought called "The only correct answer", considering pursuing unified judgement would bring competition while sufficient debates could contain good circulation. Finally, he pointed out a new direction: Essentials of judge behaviors, which meant designing systems scientifically and soundly from the perspectives of the party and judges by studying judges' tactic choices during the process of judging.

  In the end, after giving response to the questions of guests and students, Prof. Luo Kun showed sincere gratitude to RUC and all attendees. The forum ended in warm applause.

EditorZHANG Jiayun

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