Study On Reference To Applicable Clauses In Civil Code

The Civil Code continues to retain the type of legal norms of ’ reference to application ’,a total of 28 articles in the full text,which are an important part of the Code and are of great significance to the simplification of the provisions of the Code,the storage of norms,the enhancement of system and the identification of defects and omissions.Although legislators attach great importance to the provisions of reference application,the normative role of such legal provisions has not been realized in the specific reference application.This is mainly because there is no specific provision on the path of reference application,which leads to the lack of rules for the application of reference application in practice,and does not meet the requirements of reference application ’ s ‘ similar things are handled similarly,and different things are handled differently ’.In this paper,the ’ Civil Code ’ in the reference to the applicable provisions of the title,analysis of the general theory of reference to the applicable,summed up,identify the reference to the applicable problems,in comparison with the ’reference to the applicable ’ and related concepts on the basis of similarities and differences,through case analysis and system research,to build a complete reference to the applicable provisions of the applicable method,in order to better achieve the goal of ’ Code landing.’ In addition to the introduction and conclusion,this paper is divided into four parts :The first part,’ Civil Code ’ refers to the general theory of applicable provisions.First of all,as the theoretical basis of reference application,this part expounds the legislative purpose of reference application clause.Secondly,the nature of the applicable reference clauses is identified.Based on the interpretation of different types of articles,it is clear that the applicable reference clauses are applicable articles,and their essence is the reference of legal effect.Finally,the types of reference applicable clauses are distinguished and demonstrated by examples,which paves the way for the following discussion on the judicial application of reference applicable clauses.The second part is the judicial practice analysis of the applicable clauses in the Civil Code.This section first gives an overall overview of the judicial application status of the reference applicable clauses,including the summary of the scope of the reference applicable clauses and the field of the reference applicable clauses,which leads to the difficult problems to be solved by the reference application.Then,the problems in the process of ’ reference application ’ are analyzed.Specifically,there are mainly the qualitative differences of reference application,the secondary reference in reference application and the formalization of reasoning process of reference application.The third part,the definition of reference application in ’ Civil Code ’.In this section,first of all,a detailed distinction between the “ reference application ” and related concepts is made,that is,on the basis of comparing the similarities and differences among the three groups of concepts of reference application and application,reference application and analogy application,and general reference application and limited reference application,the boundaries of the “ reference application ” in the application of such clauses are clarified,including : first,the secondary reference application in the reference application is cautious;second,to prevent reference clauses being applied by analogy.In this way,the distinction between concepts and the application of boundary constraints,and then set the concept boundary for the similarity judgment below.The fourth part,’ Civil Code ’ in reference to the applicable provisions of the applicable path perfect.There are three main points.First,in terms of the value judgment in the application of the reference applicable clause,it is clear that in the application process,the value of fairness,freedom,order and value conflicts reflected in the norms of the reference applicable clause should be considered first,and the primary value should be selected first according to the value matching in the pending cases.Second,clarify the similarity judgment in the reference applicable terms,in view of the different types of reference applicable terms,the similarity judgment is also different;third,from strengthening the theoretical evidence of the judgment documents and reference to the applicable judgment results of the value target test,to ensure the legitimacy of the case judgment results.