Researches On Natural Obligation

The concept of natural obligation originated in Roman law. In the Roman law, It is a concept corresponding to legal obligation. It has great relevance with the emergence of the law of peoples. With the spread of natural ideas in Rome, equality, fairness of natural law principle is applied to the civil law of the judicial practice. In accordance with the law of peoples, the judge can apply the principle of natural law flexibly to the referee. So the legal acts which are identified to void acts because of lack of civil elements can be regarded as a natural obligation according to law of peoples. Modern civil law countries mostly inherited the Roman law of natural obligation system. However, the law of our country has no the general rules of natural obligation system. In our country there are also a lot of disputes about the nature obligation in the judicial practice. Because of no legal basis, the judicial practice of this kind of dispute remains a mess. So the author concludes that the study of the system of the natural obligation has important theoretical and practical significance. Through this paper’s discussing, the author hopes that it can open a window for this question discussion about our natural obligation system and can cause more scholars to study and discuss the usefulness of this system, which can promote the legislation of natural obligation in our country.In this paper, there are six parts including the introduction and conclusion. The content are mainly for the definition of natural obligation, theoretical basis and system value, comparative analysis of natural obligation, the system of the natural obligation structure, the natural obligation typed analysis. And on the basis of analysis, the paper summarizes the existing problems of present legislation in our country and then put forward the perfect in our country’s system of natural obligation legislation.For the definition of natural obligation, the paper base several different academic points on the meaning of the natural obligation and compare with other related concept analysis.Then I include that the so-called natural obligation is the creditor may request without the enforcement of lawsuit. But once the debtor to fulfill, the creditor shall have the right to take and maintain the delivery. As for the natural of the nature obligation, the author thinks that it is not simple legal obligations drop, nor pure moral duty distillation. It is a request in legal force reduction and delivery of the force in moral distillation. The theoretical basis of natural obligation is actually natural ideas and honest moral principle in civil law. The system of natural obligation reflects the harmony of the law and the morals. The natural obligation not only helps to carry forward the traditional morality of our country, also conduces to perfect the system of the creditor’s rights in China.The content of the natural obligation mainly include the application scope and its effect. In its scope, all countries legislation and the scholars’ understandings are different. This paper argues that we should first clear a standard for the scope. Namely; does not violate the mandatory provisions and good custom. According to the two standards, this paper further analyzes several controversial types of the nature obligation. For example:gambling debts and break-up fee agreement. Then the paper made a conclusion that they do not belong to the natural obligation. For the legal effect of the nature obligation, it includes general legal effect and special legal effect. General legal effect include:when natural obligation once perform, the debtor will not ask for the return and they will become complete legal obligation by the debtor’s admission. Special effect including:the guarantee and the offset of the natural obligation. The paper notes that:To set the guarantee and the exempt from obligations shall be effective. If in time before the unfinished, it is suitable for the creditor’s rights has offset, also for offset. Based on the analysis above, the paper analyzes several typical natural obligations. For example:limitation of debt, natural obligation based on moral obligation, the agreement of natural obligation and other types of natural obligation.As for the natural obligation has unique status and role in the civil law system, many countries and regions have ruled the system in the civil law and get the theory approbate. But the French model and the German model both in legislation mode or applicable scope is considerable distinction. In our country, although some law relate to natural obligation. But there are still many defects contrast with other countries and regions. For example, our country law has no general provisions of the natural obligation. In judicial practice, the judges fail to form a unified know on the natural obligation, which causes different terms to phenomenon. In view of this, our country should adopt other national legislation to perfect the system of the natural obligation. The author thinks that in the legislative mode, our country should learn from the legislative model of France. In the general nature, we should set the general rules of the natural obligation. And then we stipulate special rules in the specific natural obligation types. As for the scope, we should determine the basic types of natural obligation without the violation of laws and good custom. In the regulation of effect, we should stipulate the basic natural effect in the general provisions. For other special effect, we can stipulate in specific types of natural obligation.