Press: Fudan University Press, p. 480
ISBN: 730904 16 15 Publication date: August 2004.
Pricing: ￥22.00 Title: Introduction to Civil Law
Book number: 10 16596
Publishing House: Social Science Literature Publishing House
Pricing: 36.0.
ISBN:780 190344
Author: Sun
Publication date: 2004-11-01
Version: 1
Folio: 16 The research scope of the developer involves the methodology, general theory, property right and creditor's right of civil law, but the focus is on the general theory of civil law, property law, real estate law and other fields. My academic thought has basically formed a system, which has a great influence in the field of civil and commercial law in China. The main academic ideas and viewpoints are:
1. In the methodology of civil and commercial law, the viewpoint of "abandoning criticism and basing on construction" was put forward. It is believed that we should get rid of the past negative thinking mode of the existing domestic and foreign scientific research results of civil and commercial law, do not always think about criticizing others, but should seriously build our own civil and commercial law from the perspective of building a legal system that meets the needs of China's market economy and people's lives. The current jurisprudence contains too much content of "drawing a line with the class" to criticize others, but it is not very clear about what we need for our own construction. On the basis of construction, we need to absorb traditional civil and commercial laws, including western and our own legal systems in history, and also need to actively create them according to national conditions and times.
2. Firstly, the legal realization of ownership is put forward, and the ownership form of public ownership should be reformed according to the requirements of market economy. In my opinion, public ownership as the economic base is not consistent with the civil law property right system as the superstructure, and there is a relationship between them. Ownership cannot be embodied in the ownership system in civil law. Public ownership does not have to be reflected in state ownership, the state holds shares and the enterprise as a legal person enjoys ownership, which is also the embodiment of public ownership. I discussed the basic meaning of market economy in developed countries and the basic functions and relations of civil law and commercial law under this system. It is the first time to discuss the uniqueness of the property right of consortium legal person, and put forward the viewpoint of standardizing the property right of legal person in China according to the ownership form of consortium legal person.
3. In the general aspect of civil law, the legal act system has been studied uniquely. I introduced the legal act system in German civil law to China earlier, and deeply studied the origin and essence of the legal act system, pointing out the basic difference between the creditor's right act and the real right act in the legal act system. In particular, my in-depth study on the exact meaning of the theory of juristic act of real right has corrected the original misunderstanding in the theoretical circle, reversed the situation that the theory has been denied for a long time in the civil law circle in China, and revived it when the law circle in Chinese mainland has basically been sentenced to death. Because this theory provides a realistic legal basis for the transaction security under the conditions of modern market economy, the revival of this theory in Chinese mainland has contributed to the development of market economy in China. Some of my research achievements in this field have been accepted by legislation and judicial interpretation, and my academic opinions have been recognized by the legal circles inside and outside Taiwan Province Province.
4. In the field of civil law real right research, a systematic legislative idea and system are put forward. With regard to the general principles of property law, I have studied the basic principles and specific systems of property law in developed countries with market economy in the contemporary world, combined with China's practice, constructed the basic system, jurisprudence, types of property rights and related systems of China's property law, and creatively pointed out that there are three basic categories of property law, namely, adjusting the static and dynamic dominant position, adjusting the change of property rights and protecting the third party. I think the property law should have the principles of statutory property rights, absolute property rights, public property rights, specific property rights and abstract property rights, and have the function of static and dynamic protection of civil subject rights and transaction security. When property right changes, we should distinguish the elements, time and effect of debt law behavior as cause and property right behavior as result, and the property right changes should produce corresponding effects according to their own elements. In particular, I put forward that the theory of real right act should be the basic theoretical composition of China's real right law, and that the system of real right act is more conducive to protecting the third party objectively and fairly than the system of bona fide acquisition, and pointed out that a perfect registration system should be established accordingly. This view was adopted by China's real right judicial organs and became the theoretical basis of China's real right law scholars' proposal.
For the first time, I introduced the latest research results and basic system of German civil law property law, which is recognized as the most developed in the world, into China, providing systematic reference materials for China's property law legislation. In the specific provisions of the Property Law, I made a systematic study of China's state-owned land use right system from the perspective of civil property law for the first time in the early 1990s, and many achievements were adopted by later legislation. In addition, according to the jurisprudence of property law, this paper puts forward a systematic conception of the construction of the specific system of property law. For example, I propose that the property law should adopt the central and local hierarchical ownership theory for the "state ownership" system, and the collective land use right system should be reconstructed by the legal person theory, and put forward my own ideas on the system construction of consortium legal person ownership, enterprise legal person ownership and building ownership. These theories have made great efforts to expand the research fields and ideas of property law and establish the property law system under the socialist market economy system in China, which has been widely recognized by academic circles.
5. In the research of real estate law, many achievements have been recognized by academic circles and adopted by legislation. For example, according to the basic principles of property law, I systematically studied the registration of real estate, and pointed out that the registration of real estate has the effects of publicity, change, correct presumption of rights, goodwill protection and warning. On the basis of this research, this paper puts forward the "five unification principles" of China's real estate registration system, namely, the theory of unified registration legal basis, unified registration authority, unified registration effect, unified registration procedure and unified ownership certificate. This theory has become the guiding ideology of China's real right law legislation, land legislation and real estate registration law legislation. Guide: Why should we study civil law?
What is civil law?
Why did you write this book? On how to learn civil law
(a) Conceptual updating
(2) Legal rules and technology
(3) Theory and practice
Independent thinking
The first chapter is the concept of civil law
Section 1 Significance of Civil Law
The concept of civil law
(A) Basic concepts
(B) the basic classification of civil law
The position of civil law in China's legal system
(A) the general theory of China law.
(B) to understand the status of civil law in the legislation of market economy countries
Review exercises
Case study l
(A) Industrial and Commercial Bureau to participate in joint venture real estate development case L
(2) The case of land investment and development in the provincial party committee compound.
(c) Two-way mobile phone charges
(4) What is the law of China Football Association?
Section 2 A Brief History of Civil Law
Roman Law, Three Movements, Enlightenment and Civil Code
Compilation fever
Latin legal system and French civil code
German legal system and German civil code
Four principles of modern civil law
(a) The sacred principle of private rights (and the principle of social obligation of ownership)
(b) The principle of autonomy of the will (from formal justice to substantive justice)
(3) the principle of self-responsibility (fault liability and no-fault liability)
The Development of Civil Law in China since Modern Times
Sixth, the main negative impact of the precedent of the former Soviet Union on the development of China's civil law.
Review exercises
case analysis
The first case of constitutional justice in China
bibliography
Chapter II Structure, Origin, Principles and Application of Civil Law
Section 1 Basic Structure of Civil Law
Civil law structure of continental law system and common law system
(A) the civil law structure of the Anglo-American legal system
(2) the civil law system of civil law system.
Second, the structural analysis of the Chinese Civil Code
(A) the structure of China's traditional civil law
(2) Analysis of the structure of the forthcoming civil code in China.
Review exercises
Academic contention
Section 2 Sources and Principles of Civil Law
The origin of civil law
(1) General principles of civil law
(2) Separate civil law
(3) Civil regulations
(4) Judicial interpretation
(5) Habit
(6) precedent
(7) Jurisprudence
Basic principles of civil law
(1) Meaning and function
(B) the basic principles of civil law in China.
Review question l
case analysis
(1) The First Case of Public Order and Good Customs in China
(2) Demolition of private houses on the grounds of public order and good customs.
(3) Cases of marriage between father-in-law and daughter-in-law.
Section 3 Effectiveness and Application of Civil Law
The effect of civil law
(A) the meaning of normative effect
(B) the time effect of civil law
(C) the spatial effect of civil law
(D) the impact of civil law on people
Two. Application of civil law
(A) the application of civil law as a referee norm: general rules
(2) General rules applicable to civil law
(3) the application and interpretation of civil law
Review exercises
case analysis
On the Ownership of Chairman Mao's Going to Anyuan
Section 4 General Principles of Civil Law Common Sense
The position and function of general principles of civil law
(A) the concept and significance
(2) The origin and development of general principles of civil law.
Second, the main content and logical structure of the general principles of civil law
(1) Main contents
(B) the logical structure of the general principles of civil law
Review exercises
Problems and thinking
Methodology: How to "discover the law"
(B) China's Civil Code dispute
bibliography
Chapter III Civil Legal Relations and Civil Rights System
Section 1 Significance of Civil Legal Relationship
Definition of civil legal relationship
(a) from Rousseau's "shackles".
(B) the definition of civil legal relationship
Elements of civil legal relationship
(A) the subject of civil legal relations
(B) the content of the civil legal relationship
(3) the object of civil legal relationship
Third, the significance of civil legal relationship
(A) the legislative and theoretical value of civil legal relations
(B) the judicial guiding significance of civil legal relations
Review exercises
case analysis
(A) tax "infringement" cases
(2) The death case of transporting pigs in Shunyi pig farm.
(3) Orchard contracting case with complicated civil legal relationship.
Section 2 System of Civil Rights
introduce
Second, the nature of civil rights
Classification of civil rights
(A) property rights and non-property rights
(b) On human rights and universal rights
(3) the right of control, claim, organization and defense.
Fighting for rights: the relationship between modern citizens and law
(A) Ye Lin's speech
The relationship between defending rights and citizens and law
Review exercises
case analysis
(1) The Transportation Bureau offered a reward for reporting cases of drivers who violated regulations.
(2) The telegraph case is decided by Lord Tanning.
Section 3 Changes in Civil Rights
Changes in civil legal relations and changes in civil rights
Acquisition, change and loss of civil rights
(a) the occurrence or acquisition of civil rights
(2) Changes in civil rights
(3) the loss of civil rights
Reasons for the change of civil rights: legal facts
(A) the theory of "composition" in laws and legal facts
(2) Types of civil legal facts
Review exercises
case analysis
Zhong Qing's case of buying a computer is complicated.
Section 4 Protection and Exercise of Civil Rights
Protection of civil rights
Public relief
(b) private relief
Exercise civil rights
(A) the method of exercising civil rights
(two) the exerciser and the ability to exercise civil rights.
(3) Legal restrictions on the exercise of civil rights
Review exercises
case analysis
(A) Kohlberg's "moral dilemma"
(B) Peking University students were "fined" for crossing the construction site
(3) Hu Hansan doesn't give money for meals.
Problems and thinking
bibliography
Chapter IV Civil Subject
Section 1 Determination of Civil Subjects
1. Criteria for determining civil subjects
capacity for private rights
(A) the definition of capacity for civil rights
(B) the principles of application of the capacity for civil rights system
Civil rights capacity and "objective rights"
3. Capacity for civil conduct
(A) the definition of capacity for civil conduct
(2) Elements of civil capacity
Review exercises
case analysis
American children's m case
Section 2 Natural Persons (1)
Legal semantics of a "natural person"
(1) Natural persons and citizens
People in the biological sense and people in the ethical sense.
Natural person's capacity for civil rights and behavior
(A) the capacity for civil rights of natural persons
(2) Birth and death of natural persons
Civil capacity of natural person
(A) criteria for judging the capacity for civil conduct
(2) Full capacity for civil conduct
(3) Limiting the capacity for civil conduct
(4) Having no capacity for civil conduct
(5) The declaration system of civil capacity.
(6) Legal acts that minors can independently engage in.
Natural person guardianship system
(A) the significance of guardianship
(2) guardians of minors
(3) Guardians of mental patients
(4) Duties of the guardian
(five) as a guardian of the dispute and guardian change.
(6) Termination of guardianship
Missing and death statement
Fiction in civil law
(2) Declare missing
(3) Declaring death
Review exercises
case analysis
(1) The award-winning case of Xu Painting by a minor.
(2) The disappearance of farmer Yang Feng's part-time job.
In the third quarter, natural person (2)
Personality right of natural person and civil law mode
(A) the definition of personality rights of natural persons
(B) personality rights and civil law model
Second, the general personality right of natural persons.
(A) the definition of general personality rights
(B) the content of general personality rights
(c) The function of general personality right and its relationship with the Constitution.
Specific personality rights of natural persons
(1) Preface
(2) Right to life and health
(3) Name right
(4) Portrait right
(5) Right of reputation
(6) Right to privacy
(7) Freedom
4. The domicile of a natural person
Review exercises
case analysis
(1) violation of the right to mourn for the mother.
(2) The decorator committed suicide in someone else's wedding room.
(3) The Maqiao Dictionary case
Section 4 Legal Person (1) L
Legal Person: Fiction and Reality
(a) Composition and nature of legal persons
(B) the function of the legal person system
(3) Limited liability of legal person
Basic types of legal persons
(A) theoretical classification
(two) the classification of civil law in China.
Civil capacity of legal person
(1) Preface
(2) The capacity for civil rights of legal persons
(3) the capacity for civil conduct of a legal person
(4) Capacity for civil liability
4. Establishment of legal person
(a) the establishment and establishment of legal persons
(2) Conditions for the establishment of a legal person
(3) Principles for the establishment of legal persons
(four) the judgment of the legal person organization
Legal person's domicile
Review exercises
case analysis
(A) Wang Ming and Li Da investment case
(2) The situation of withered roses
Section 5 Legal Person (2)
An institution of a legal person
(A) the necessity of establishing a legal person organ
(2) Composition of the organ as a legal person
(C) typical corporate structure: corporate governance structure
Change and extinction of legal person
(1) Change of legal person
(2) the elimination of legal persons
3. Denial of corporate personality
(A) the reasons for the denial of corporate personality
(B) the type and composition of corporate personality denial
(3) The legal effect of corporate personality denial.
4. Associations without legal capacity.
(a) Definition of an organization without legal capacity
(b) Application of laws to associations without legal capacity
Review exercises
case analysis
Shida Company and Sihe Company's Debt Undertaking Case
Problems and thinking
Reading bibliography l
Chapter V Object
Section 1 What are things in civil law?
The basic meaning of a thing
Scope limitation of two things
(1) things in private law and things in public law
(2) Intangible objects
(C) the controllability of things
(4) the human body
(5) the circulation ability of things
The whole and part of three things
(1) necessary components
(2) Temporary components
Review exercises
case analysis
(1) The case of doctors transplanting organs of the deceased
(2) Contract cases of selling lunar land and space.
(3) The government rents fishing ports.
(4) Sales of reserved tires and reading lamps in automobiles.
Section 2 Classification of Objects
Movable and immovable property
(a) The difference between movable and immovable property
(2) Real estate
(3) Movable property
Second, subject and subordinate.
(A) the concept
(2) Determination of attachments.
(III) Handling principles
Three originals and fruits
(A) the concept and significance
(2) Ownership of fruits
Review exercises
case analysis
(1) Disputes over the ownership of landfill sand and gravel
(2) selling bicycles and keeping car locks.
Section 3 Property, Enterprises and Animals
The difference between property and things
Enterprise as the object of property right
Three kinds of animals
(1) Is an animal a thing?
(2) Protection of animals by civil law
Review exercises
Case study l
(1) Disputes over the right to use the original enterprise name after the transfer of the enterprise
(2) SARS prevention and control and civet extinction cases.
Problems and thinking
bibliography
Chapter VI Legal Acts
Section 1 Legal Acts and Autonomy of Private Law
1. Terms of legal acts and their formation
(1) Terminology of legal acts
(b) The emergence of the term "legal act"
"Civil juristic act" in General Principles of Civil Law
2. Judgment of legal acts
(A) the characteristics of legal acts
(2) Criteria for judging legal acts
Legal acts and autonomy of private law
Legal acts and allocation of national resources
(b) Legal acts and autonomy in private law
Review question l
case analysis
A case in which an uncle gave a gift to his nephew as a reward.
Section 2 Types of Legal Acts
Unilateral legal acts and bilateral legal acts
Unilateral legal acts and bilateral legal acts
Paid legal acts and unpaid legal acts
Four promised legal acts and actual legal acts
Five Important Legal Acts and Unnecessary Legal Acts
6. Bear legal acts and punish legal acts.
Review exercises
case analysis
Number of legal acts
Section 3 The Core of Legal Act-Expression of Will
The expression and formation of a meaning
Synthesis of double-meaning expression
Effective time of three-meaning expression
(a) the relative person's expression of will does not take effect
(2) The expression of will by the relative person takes effect.
(3) the effective time of the expression of special meaning
Interpretation of the expression of four meanings
(1) Why should we explain the expression of will?
(B) Interpretation methods of expression of will
(3) Subjectivism and objectivism in the interpretation of expression of will.
Review exercises
case analysis
(A) the interpretation of Greek dilemma reasoning litigation
(2) Difficult cases left by Roman jurists
(3) The situation of Mao Zedong's birthday watch.
Section 4 Elements of Establishment and Effectiveness of Legal Acts
1. Elements of the establishment of a legal act
(A) the general conditions for the establishment of a legal act
(2) Special constitutive requirements of legal acts
Two. Effective elements of legal acts
Third, the difference between the establishment and effectiveness of legal acts.
4. Limitations on the validity of legal acts-conditional and time-limited.
legal act
(1) Conditional legal act
(2) legal acts with a time limit.
Review exercises
case analysis
(A) middle school students cheat adults into the case
(2) What behaviors do not violate public order and good customs?
(3) Uncle's case of conditional donation and repentance
Section 5 Expression of Flaw Meaning
Definition of defective expression of meaning
Second, the meaning is not true.
(a) The true meaning of a reservation
(2) False expression
(3) Concealment
(4) the expression of banter.
(5) Error
Three layers means not free.
(1) fraud
(2) coercion
(3) Take advantage of others' danger
Review exercises
case analysis
(A) Price List Printing Error Cases
(2) Gift or sale
Section 6 Validity of Defective Legal Acts
Three legal effects of defective legal acts
nullity of juristic act
(1) Types of invalid legal acts
(two) the legal effect of invalid legal acts
(3) the transformation of invalid legal acts
3. Revocable legal acts
(a) Types of legal acts that can be revoked
(two) the validity of the legal act that can be revoked
4. Legal acts with undetermined validity
(1) Types of legal acts with undetermined validity
(two) the legal effect of the legal act with undetermined effect
Review exercises
case analysis
(A) the case of old smokers buying fake cigarettes
(2) Cases of glasses injury
Problems and thinking
bibliography
Chapter VII Agency
Section 1 Introduction of Agents
The basic meaning of agency
What is an agent?
Nature of agent
(3) the position of agency in civil law.
Two. Elements of agency
(A) effective agency behavior
(2) Open agency relationship
(3) Appropriate agency right
Legal consequences of agency
Fourth, the difference between agency and related concepts.
(1) Agency and entrustment
(2) Institution and discipline
(3) Institution and domicile
(4) Agents and representatives
(5) Agency and communication
Review exercises
case analysis
(1) My sister and her lover apply for marriage registration.
(2) The younger brother applies for marriage registration instead of the older brother.
Section 2 Agency right
1. Acquisition of agency right
(A) how to obtain the agency
(2) Obtain a power of attorney.
2. Exercise of agency right
(1) Rules for the exercise of agency rights
Abuse of agency rights
3. Elimination of agency right
Review exercises
case analysis
(1) Zhang Wuji sold the house on behalf of Yue Buqun.
(2) The case that the father received the gift money and sold the house on behalf of his son.
(3) Gui Li bought fake wine.
Section 3 Classification of Agents
1. Entrusted agent, legal agent and appointed agent.
Active agent and passive agent
3. Independent agent and * * * same agent.
Four agents and anonymous agents
Direct agency and indirect agency
6. Authorized agents and unauthorized agents
7. Principal-agent and multi-agent
Review exercises
case analysis
Crystal necklace box
Section 4 Unauthorized Agency
The basic meaning of unauthorized agency
Second, the constitutive elements of unauthorized agency in a narrow sense
Third, the legal effect of unauthorized agency in a narrow sense
(a) the legal relationship between the client and the third party
(two) the legal relationship between the principal and the agent.
(three) the legal relationship between the agent and the third party
Review exercises
case analysis
(a) Wei Xiaobao painting case.
(2) Zhou did a good job.
Section 5 agency by estoppel
The basic meaning of agency by estoppel
Second, the constitutive requirements and legal consequences of agency by estoppel
Review exercises
case analysis
Lost identity card case
Problems and thinking
bibliography
Chapter VIII Time
The first festival period and duration
Time in civil law
Second stage day
Three periods
(A) the basic meaning of the problem.
(2) a predetermined period
Review exercises
case analysis
(a) the delivery of housing by real estate agents
② Unknown forced to sell swords.
Section 2 Restrictions
The basic meaning of one party
limitation of action
(A) the significance of the statute of limitations
(2) the object of limitation of action
(3) Classification of limitation of action
(4) Calculation of the limitation of action
(5) Suspension, interruption and extension of the limitation of action.
(six) the legal effect of the limitation of action
(seven) the difference between the limitation of action and the limitation period.
Review exercises
case analysis
(a) Dombey Cui Hua family case.
(2) A case in which a hippo killed a girl.
Problems and thinking
bibliography
Skills of answering review questions
Terminology index
Main references