The Ideological Basis Of China's Civil Code And The System: Beyond The Roman Law System

During the process of Chinese civil code constitution, the controversy between new-humanism and materialism brought into play. The affirmation of new-humanists actually lies on taking French civil law as model for our civil code constitution. While materialists insist constituting the code according to BGB. Comparing to the controversy between ceremonism and nomologism in late Qing political reform, the diverge between New Humanism and Materialism isn't part of different law ,but part of dispute in Roman Law family. Actually, both of them, as Roman law monism, claim china should constitute civil code following the civil system of Roman family. Roman law monism as a reality in china's today is the result of monists making the civil law system of roman law which taking on universality science appearance nihility, and The problem of roman law applicability in china hasn't solved yet. China civil code constitution must beyond roman family and research and meet the special demands which comes from real social production and life in china. we must innovate the basic systems of civil law, such as personality system, Civil Subjects system, right system and civil behavior system。the style of personality in west civil system attributes to equal and free property personality, while china has the history tradition of selecting the wise and capable persons as officials, which combines with economy development reality and put forwards together the request of ability personality。West civil subject system is a two-person world, including nature person and juridical person。While in china, the state owns quite a lot producing asset and should be another important subject so that it can participate in civil affairs. On account of historical causes, the two-right system (person right and property right) in roman family civil law system faces the challenges from modern product and life. China should takes share right into account when we constitute civil rights system in civil code in 21st century. Shares reflect modern social productivity owning relation. Share right as an independent right type is a way for civil law to adjust the relation. On the basic of this, we can also solve the diverge between the opinions on the relation of civil law and commercial law. At the same time, we should establish intellectual property as another independent type in civil rights system so as to taking intellectual property law into civil law system to adjust the production and distribution of intellectual products. West capitalist society takes distribution according to capital as fundamental distribution principle, therefore they harmonize the collision between the two distribution principles of according to work and according to capital by will priority in civil behavior system. While experiencing the baptism of revolution, China objectively need establish the priority of distribution according to work by civil law. In the material civil behavior system, work should be prescribe as the fundamental way to wealth acquirement. Work priority is used to harmonize the collision between work and capital in distribution system.