Wang Yi: On the Multiple Contexts of “Shall” in Property Law of China2018/12/17
Abstract: There are totally 247 articles in the Property Law of the People,s Republic of China, of which 84 articles have the term “Shall”. Even in the same law, the meaning of the term “Shall” varies with the situations and contents. Apart from some exceptions, the usage of the term “Shall” is usually related to the categorized types of legal norms. In most situations, the legal provision developed or established from the legal text using the term “Shall” corresponds to a single norm or a complicated norm or a rule combining the single norm and the complicated norm, without sweeping generalizations. For articles in which “Shall” corresponds to a single norm, some could be excluded from application through agreement, while others could not be excluded from application through agreement. For articles in which “Shall” corresponds to a complicated norm, there are advocating norms, norms authorizing the third person, and mandatory norms. When China codifies the Property Section of the Civil Code, the emphasis should be put to the multiple contexts of “Shall” in the current legal texts of China for benefiting the proper design of legal provisions and appropriate application of legal norms.
Keywords: Shall; Simple Norm; Complicated Norm; Property Law
(Editor: XU JING)