중국민법전의 제정과 민법학의 과제

The Constitute of Chinese Civil Law and Civil Law Issue

With the development of China’s reform and opening, as well as the prosperity of socialist market economy. China’s civil law and civil legislation have been developed rapidly. The process of Chinese civil legislation can be divided into the preliminary stage of reform and opening and in the later of 1990s. Civil legislation of the two different times fully reflects the achievements which China’s reform and opening and socialist market economy have gained at different stages, its legislative proceeding also reflects the different position and attitude towards the reference and inheritance of foreign law, as well as the development and changes of different legislative stages and future trend. You can say that China has formed a basic system of civil law. Single law, such as contract law, property law, tort law, and other major civil legislation which are essential for the Civil Law have been completed, it means that the time is ripe for the constitute of the Civil Code. In October 2014, the Code of Civil Law once again became an important topic and reached an agreement at the annual meeting of the civil. It refers to the code of civil law should be included by the national legislative process as quickly as possible, at the same time, a number of important issues during the formulization of the Civil Code have been mentioned. The basic approach for the development of the Civil Code is the legislation of Civil General firstly, followed by the legislation of the personality rights, and then integrate all civil single law, forming an unified civil code in the end. Because past civil legislation and research, which eager to meet the needs of country’s reform and opening up and complete market economy‐related legislative tasks, there is no point in researching the elementary problems, such as the nature of civil, the basic system of civil law, civil law hermeneutic, etc. In addition, limited by the historical background and the limitations of legislative technology, it is hardly possible to avoid the duplicate, the conflict and the contradiction between the single law, and the application of law is difficult. Therefore, in order to formulate a civil code with scientific content and uniform system, we must change the idea about the study of the civil, in other words, we should change “the research of legal constitute” into “the research of legal interpretation “that based on civil law’s essential theory and the research of legal application.