Legitimate Basis Of Contract As A Source Of Law

The source of law is the legal informational system sought by judges when trailing the case as well as the materials and object of legal-foundation.In the practice of civil jurisdiction,whether the contract will be regarded as the source of law by judges,namely the issue of legitimacy of contract as a source of law,has always been neglected by both theoretical and practical realms in our country.In traditional seeking system of source of law,whether the contract can be considered a source of law is a disposable issue,and it also occurs the chaos of judicial determination in the process of judgment.The 10th,119th and 129th acts of just-enforced"General Principles of Civil Law"have made a legislative breakthrough in the establishment of source of law and still with defect in practice.Beginning with the basic essence of source of law,the article discusses the legitimacy and necessity of contract as a source of law,establish the subjective acknowledgement of clients of contract as"private legislator"and eventually,form a basic path of jurisdiction of contract as a source of law.The main body of the article is divided into 5 parts.Specifically speaking:The first part discriminates the meaning of legal-source preliminarily by scanning the source of the word and divides the word"legal-source"with two dimensions:"legal"and "source"and express the basic conception of them respectively.Finally,it analyzes the basic essence of legal-source.Meanwhile,it theorizes the character of civil legal-source and its specialty compared with other legal-sources,emphasizing its pathetic diversity on the method of jurisdiction and quests whether there’s a scope for contract in such a relatively-opening civil legal source.The second part,by comparing the setting of civil legal-sources of various legal areas and the practice of contract as source of law,indicates that the legislature of civil legal-sources in most countries adapt the model connecting specification with abstraction,which though not points out whether the contract can exist as an independent source of law,has provided a legislative scope for contract to enter the system of legal-sources.Meanwhile,it introduces two contradict view of the legitimacy of contract.The third part censuses the quantity of contract cases trailed by courts in recent years and its percentage of all civil cases to explain that contract cases has become a dominant one in civil jurisdiction.At the meantime,by presenting the adaptation of contract as a source of law,it also indicates that contract has not yet been respected as a source of law,nor has its legitimacy been testified in modern judicial circumstance.The forth part appears to be the core of the article which analyses the basis of legitimacy of contract as a source of law.The premise condition of contract as legal-source should feature a contract with double attributes of fact and legal,otherwise there’s no room for the problem of contract as a source of law.Under this premise condition,the legitimacy of contract as a source of law derives from its external and internal factors:the former originates from the position of“private legislator”of its clients who may create their own rights and duties as legislature;the latter from the legally-expressive form of the clause itself,which has manifest expressive system of“obligation—liability”,in order to operability in jurisdiction.In conclusion,it admits that contract belongs to formal sources of lawThe fifth part points out the loophole of civil legal-sources by the rule of 10^th,119th and129^th act of current“General Principles of Civil Law”esp.the deficiency whether contract can be a source of law and hence puts forward a pathetic integration of the establishment of legal-sources in“Civil Law",making the character of legal-source of contract manifest in “Civil Law”.In summary,the article synthetically introspects and suspects the legitimacy of contract as a source of law as well as its systematic construction in the background of unvarnished methodical dilemma in current judicial mechanism of contract cases and the deficiency of paradigm,attempting to make contract the status of a legal-source in civil jurisdiction and be ruled in“General Principles of Civil Law”as a formal legal-source.