Research On Typical Modal Verbs In The Civil Code Subdivision

The compilation of the Civil Code of the People's Republic of China is a milestone in the legislative process of China,which should be reflected the highest level in two aspects: perfect legal system and Chinese language and culture.Modal verbs are an indispensable elements of legislative language,which are essential for legislators in expressing laws and judicial workers in understanding and applying laws.However,lawmakers and scholars do not pay much attention on the modal verbs in the legislative language.The following questions are still no be solved in the Civil Code: there are some misconceptions between modal verbs and the normative nature of the articles;the polysemy and homonym of modal verbs are common in the civil law system;the improper using specific words has cause difficulties in understanding and application of the law;modal verbs that are embodied by legislative ideas are not given a thoughtful consideration.This paper,regarding "should","can","must not",and "cannot" as the main line,gives a deep discussion on those issues and tries to regulate the use of legislative language.The modal verb word of "Should" in the Civil Code which contains various legal meanings,such as setting obligations,responsibilities,advocacy suggestions,presumption of the subjective mentality of civil subjects,and the requirements for the establishment of legal acts."Should" is often regarded as a sign of compulsory norms,which is not true.In the Civil Code subdivision,"should" has lots of meanings,for example,guiding arbitrary norms,advocacy norms,and a party or third party authorized by norms.In terms of usage,"should" has the same legal meaning as "must",so the word "should" should replace "must";In order to embody the spirit of autonomy of the civil code,“having the right” should replace "should".The modal verb word of "Can" refers to the granting and permission in the Civil Code subdivision."Can" can not only guide arbitrary norms,but also represent norms that authorize one party and third party.This means Civil Code subsections should be cautious about using “can”.There are some overlaps between “can”,“having the right” and “having the ability”,so each modal verb should refer to one specificmeaning.The modal word of "Must not" means prohibition,and incapacity in the Civil Code subsection."Must not" can guide both multiple prohibitive norms and arbitrary norms."Must not" has the same effect as "Prohibition" in the civil code subdivision,so "Prohibition" should be abolished;"Must not" and "should" respectively convey different legislative ideas,so to convey the spirit of self-government of private law,a further discussion should be made;when using "must not" to set behavior patterns,the consequences of behaviors should be supplemented.The modal verb of "Cannot" has the same meaning as "Must not" in the Civil Code division,which means that it is forbidden and incapable.Besides,the overlap does not exit in those words.According to the basic rules of linguistics and the habit of using legislative language,"must not" should be used to indicate prohibition and disallowance,and "Cannot" should be used to indicate objectively “incapable” and“impossible”.To regulate the system of modal verbs in the Civil Code,“incapable”and “impossible” should be deleted.