| Juristic act conception is one of the main ideas of Pandecten civil law system. It was introduced to modern China, and brought great impact on the modernization of civil law system in China, which can be concluded as: first, it established the typical ‘general---specific provision’ structure of civil codes, which made civil code an organic value system; second, it constructed the ‘human---jutistic act/fact---right’ mode for civil law; third, it contributed to the transform from the traditional heteronomy system to autonomy. The key elements of effectiveness decide whether juristic acts shall have effect, and whether people’s will shall be fulfilled. They are determinants for juristic acts to act for the autonomy of private law. This thesis looks back to the history and analyses focuses of controversy from modern scholars on key elements of effectiveness of juristic acts, regulations on key elements of effectiveness from modern legislations and their transitions, precedents and speeches on key elements of effectiveness from modern supreme judicial organs. This thesis draws a picture on the migrant, and localization history, from aspects of scholar, legislature and judiciary, which maybe helpful in making the general provision of civil code of our country. This thesis includes five chapters, apart from the preface.Chapter One: Traditional contract system and the introduction of modern juristic acts. This chapter is divided into two parts. The first part looks back to the traditional contract system. Compared with modern legal act system, the traditional contract system is easier to be interfered by public power, focuses on identity of individual, without equality to different parties, emphasizes too much on procedure and lacks abstract rules. All these features are contrary to the nature of legal act. The reason for the appearance of traditional contract system can be dominating agricultural economy, patriarchal clan society, underdevelopment of legal research and empirical legal thoughts. The second part focuses on the introduction of modern juristic acts. The concept of legal act in our country is imported from the Japanese translation of Rechtsgesch?ft. The ‘Draft of Great Qing Dynasties’ adapts the legal act system, puts it into a specific section into the first chapter of general provision. But it does not make a unified regulation on key elements of juristic acts. In academic, some of the originally translated Japanese theories distinguish between key elements of establishment and key elements of effectiveness of juristic acts, others do not. The former became the general view in modern time.Chapter Two: Modern scholars’ research on key elements of effectiveness of juristic acts. This chapter is divided into three parts, analyzing three directions of key elements of effectiveness. In research of capacity for civil conduct, many theories are followed in the late Qing Dynasty and early Republic of China era. Scholars have considerable differences in the concept of civil conduct capacity, its relationship with mental capacity, its pattern(to distinguish between person with full capacity and person without capacity, or to distinguish person with full capacity, person with limited capacity and person without capacity for civil conduct). In the research of appropriateness of subject matters, they usually have close opinion in possibility and confirmation of the subject matter, but divergence exists in the effectiveness of juristic acts in definition of imperative law, effectiveness of illegal acts, definition, relationship, illegal motivation(if happen) of public order and good customs. In the research of intentions, scholars focus on the cognizance and effectiveness of intentions and have different views in whether there should be distinction for fraud and coercion in the purpose of keep in mind, and whether there should be distinction for untrue content, deceive and banter as key elements of colluding false intention.Chapter Three: rules and transition of the key elements of effectiveness of juristic acts in modern legislature. This chapter is divided into three parts, explaining relevant provisions of ‘the Draft of Civil Code of Qing Dynasty’, ‘the Draft of Civil Code of Republic of China’, and ‘the Civil Code of Republic of China’. The ‘Draft of Civil Code of Qing Dynasty’ did the legal transplant from foreign laws after selection: 1, in the regulation of civil capacity, the Draft inherits from the Japanese Civil Code; 2, for other regulations, the Draft has more similarities with the German Civil Code; 3, there is still some provisions in the Draft, that do not exist in German Civil Code or Japanese Civil Code, most of which can be found in provisions of civil capacity. The number of provisions of key elements of effectiveness of juristic acts was decreasing follows the improvement of legislature technique; legal terms became more and more professional, western, and simplified. Being influenced by the trend of social standard thoughts in the world, the Civil Code of Republic of China has more rigid restricts in private autonomy than the former two drafts, which does not seem to be suitable to China.Chapter Four: modern judiciary’s solution on relevant disputes. This chapter is divided into three parts, analyzing relevant cases of Daliyuan and the Supreme Court. The first part talks about civil capacity cases. Daliyuan quoted from the Draft of Civil Code of Qing Dynasty as principle, and its opinions and judgments follows the regulations in Draft of Civil Code of Qing Dynasty. The Supreme Court which was established after 1929, accepts the regulation in the Civil Code of Republic of China. the Draft of Civil Code of Qing Dynasty and the Civil Code of Republic of China have different rules in civil capacity, which were reflected from judgments from Daliyuan and the Supreme Court. Some of the judgment of Daliyuan had some features of the transition period, which were out of date when the Supreme Court came to judge. The second part and the third part are about cases on the appropriateness of subject matters of juristic acts, and completion of intentions. The Supreme Court followed the points of Daliyuan, and used civil law terms and illustrated jurisprudence much better, notwithstanding the legislation function of the Supreme Court was waken.Chapter Five: impacts and enlightenment of key elements of effectiveness of juristic acts in modern time. This chapter is divided into three parts. The first and second parts analyses the influence and development of modern juristic acts to Taiwan and Mainland China. In Taiwan, theories, legislature and judicial precedents of key elements of effectiveness of juristic acts are fully inherited. However recently, legislature has made corrections in interdiction regulations, following the development of German and Japanese civil law. They raised new points of view in dualist division of key elements of effectiveness of juristic acts and wrong theories. In Mainland China, the juristic act theory did not enjoy a peaceful time. After experienced complete interruption from 1949 to 1978 and the revival after 1978, recently, scholars have further developed theories in concept of juristic acts, key elements of effectiveness of juristic acts and legal standards, etc. The third part is based on the analysis of first two parts and provides suggestions for the future civil code of our country, also considering the plan of making general provision for the code: firstly, in concepts, it will be recommended if we replace the terms of civil act and civil jurist act with juristic act; secondly, for the juristic act which violate the imperative law, they can be concluded as ‘the juristic act shall be held invalid because of their violation of imperative law, unless otherwise regulated by law’. The definition of imperative law shall be left to the judges in judicial judgments, instead of given in legislation; thirdly, for the aspect of incompletion of intention, we shall adapt the modern classification and validity cognizance of keep in mind, colluding false intention, mistaking, miscommunicating, deceive and banter, reduce the interference in juristic acts, and keep the balance between private autonomy and protection of trading safety. |
PDF Full Text Request