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On the Legislative Form of the Basic Principles in Civil Law

Author: GuZuo
Tutor: LiXiuFen
School: Shandong University
Course: Civil and Commercial Law
Keywords: Basic Principles Legislative Form The Dispersive Form The Chaptered Form
CLC: D923
Type: Master's thesis
Year: 2010
Downloads: 127
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Abstract


The discussion of legislative form of basic principles in Civil Law is not mentioned in our scholars. The question about the legislative form of basic principles in Civil Law is based on the question that the Civil Law should stipulate the basic principles or not. We can have a sure conclusion after understanding the meaning of basic principles and having a expedition from the moral view, legislative view and judicial view.We can have a basic conclusion that there are two legislative form—the dispersive form and the chaptered form, in the civil codes among the countries after having comparative expedition. The dispersive form is influenced by the rationalism and strict-rulism. But this form has one predicament that it is very difficult to distinguish the basic principles and the legal norms, so to some extent, the legal effect of the basic principles in the civil law is limited. The chaptered form complies with the trend of historical development, results from code evolving, and is needed of setting the general introduction of civil law. This form also has one weak point that the basic principles in the civil law will conflict when the case judged by principle-applied comes, but it may be settled by the legal technology of legislating the source of law.The General Principles of The Civil Law of China adopts the chaptered form, but it omit the constituent part of legislating the source of law. So some questions come up in the judicial practice. The three protocol of Civil Code about the legislative form of stipulating-basic principles do not pay enough attention about this question. So in the Civil Code, The paper puts forward the proposal, we should adopt the chaptered form and stipulate the rule of the source of law.

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