| In May 2020,the Civil Code of the People’s Republic of China was deliberated and passed.It is worth noting that this Civil Code shows a strong tendency of public law in terms of institutional arrangement and rule design,and a large number of norms of public law have been established.The so-called norms of public law refer to those existing in the Civil Code with the nature or significance of public law for the purpose of safeguarding national interest,public interest,public order or social morality.Specification "civil code" in the public law differs from that of pure between equal subjects with private law autonomy as the core of the specification,but it is not entirely public law norms,because its in codes of private civil code the system framework and serve the purpose of the civil law as a whole,the essence of which is on the basis of respect for private law autonomy justified,appropriate and effective state intervention,In order to correct the private rights of arbitrary harm,to achieve the public good.The establishment of norms of public law in the civil code reflects the complex relationship between private law and public law,autonomy and control in the process of modernization of civil law in China.This paper intends to explore this phenomenon from the perspective of jurisprudence,including why there are so many norms of public law in the civil code.What makes sense?How to grasp the limit and scale of establishing public law norm in private law system?What is the need to reflect on the value level?And a series of related issues.In this regard,the first part of this paper firstly combs the concept,classification,distribution and establishment mode of the public law norms in the Civil Code in detail,in order to obtain a comprehensive understanding and grasp."Public law norms" as a product of the public law,private law,highlights its different from general civil law standard and has the legal means or purpose of public law,public law sexual purposes refers to these specifications are intended to safeguard national interests,public interests and public value target for the protection of vulnerable groups,means the way of sex refers to the public law to adjust the force or control,But in essence it still belongs to the scope of private law and serves the order of the whole private law autonomy.At the same time,the law of civil code specifications according to different standards have different classified methods,main aim according to the specification can be divided into political policy,restrictive,protective,mixing purpose,according to the specification attributes can be divided into the content of the constitutional regulations,administrative regulations,social norms and etc.The establishment ways of public law norms in the civil code can be divided into different ways,such as "internal setting","induced" and "referral",and the different ways of integration reflect the different logics of the country’s entry into the civil law.In the second part,we analyze the rationality of the establishment of public law norms in the Civil Code in detail,that is,why a large number of public law norms should be set up in the civil law system.First of all,from modern civil law to modern civil law,the civil law was transformed from a "strong and intelligent" rational man to a"weak and foolish" ethical man,and the civil law standard was transformed from an individual standard to a social standard,which required more and more state intervention and intervention to realize a kind of correct social justice that "restrained the strong and supported the weak".Thus,the need for the existence of public law norms in the civil code arises.Secondly,in terms of Chinese context,and the public law of civil norms essentially relates to a country’s legal system of civil law and the constitution of the collision,and the relationship of the xian has long been a struggle,but a lot of public law in the civil law norms and have direct or indirect relationship between the constitution and the law of sexual norms are embedded in the private law autonomy as the kernel of the civil law,It concentrates on the political choices and some core value judgments contained in the civil code,while the constitution is exactly the concentrated expression of a country’s political system structure and value choices,and the public law norms in the civil code actually constitute an effective "cut" between the unification of the constitution and the entry into the civil law.On the basis of realizing the input of constitutional value to the civil law field and ensuring the autonomous order of private law,the public law has proper involvement in the private law,and at a deeper level reflects the constitutional functions of different dimensions carried by the civil code.Again,China’s civil code is a macroscopic relationship to the governance and basic code,have distinct political mission in China,through the establishment of public sexual norms effective implementation of the governance of socialism with Chinese characteristics,socialism and humanism green,in promoting the modernization of national management system and management ability,The values of "benevolence","noble people","virtue" and "harmony" in traditional Chinese culture provide a unique Chinese value support for state intervention under the norms of public law.The last part is the value reflection on the establishment of the norms of public law in the Civil Code.First,we will explain the value orientation of the norms of public law(the unique significance of carrying forward the "socialist core values")and the resulting attack on the freedom and autonomy of private law.In the face of the value measurement of "right" in private law and"public good" in public law norm,we believe that modern civil law should still adhere to the logic of "right precedes good" and place individual basic rights and freedom in the priority position.Therefore,China should stick to private law autonomy of civil law,guard against excessive force,especially the legal paternalism behind the public law to prevent sexual moral and law,at the same time,can consider to will be introduced to the public law "proportionality"of the civil law as a measure of state intervention in the public law nature specification in appropriate scale,to grasp the effective balance between the rights of the individual freedom and national regulation.In a word,China’s Civil Code stands at the modern juncture of the intersection of public law and private law.While maintaining the purity of private law and insisting on the autonomy of private law,it should give full play to the beneficial role of the norms of public law in the substantive social justice,the protection of the weak,national governance and the construction of legal order with Chinese characteristics.It becomes a modern civil code with real Chinese characteristics,reflecting the needs of The Times and crossing the boundary between public and private law. |
