Research On The Application Of Referenced Applicable Provisions In The Civil Code

The study on the application of Referenced Applicable Provisionsin the Civil Code is of great significance for the systematization of China’s Civil Code.The extensive use of Referenced Applicable Provisions in the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code)demonstrates China’s continuously developing and improving civil legislative and judicial techniques.The uniqueness of "reference application" lies in its simultaneous use as a legislative and judicial application technology.With the promulgation of the Civil Code,while continuously improving its aspect as a legislative technology,research on its use as a judicial application technology should also be strengthened.There are four main views on the nature of reference application: reference application is a legislative technique;Reference application is a special analogy application;Reference application is a special method of legal application;Reference application is not only a legislative method,but also a legal application method.The academic community generally believes that "reference application" is essentially "analogical application",which is "analogical application of legal provisions".The author generally agrees with this viewpoint.Classified according to different standards,reference application can be divided into the following types: based on whether the referenced norms are a single specific norm or a group of norms,it can be divided into specific and general references;based on whether the referenced objects are legal norms or standards as a classification standard,it can be divided into normative references and standard references;based on the different fields of referenced norms,it can be divided into intra domain references and extradomain references.There are similarities in some aspects between the methods of legal application such as reference application and direct application,analogy application,expanded interpretation,and imitation,and a distinction needs to be made between them and the concepts and relationships of direct application,analogy application,expanded interpretation,and imitation.From the perspective of legislative purposes,the setting of reference applicable clauses is to pursue fairness and justice,avoid the complexity of legal provisions,and fill legal loopholes.Reference application has the functions of promoting the systematization of the civil code,addressing future civil law gaps,unifying the formal and practical rationality of the law,and limiting the discretion of judges.As an important legislative and judicial technology,in order to avoid its abuse,certain restrictions should be placed on its application.The academic community generally believes that limitations should be made in the following four aspects: the limitations on the conditions of reference application;Limitation of scope;Prudent secondary reference application;Do not apply analogies to reference applications.Through the study of the scope of reference norms in practice,we can see that its scope is wide.In judicial practice,there is not only the reference application between the divisions of the Civil Code and within the divisions,but also the reference application of the Civil Code to other departmental laws,not only the reference application of legal norms but also the reference application of judicial interpretation.In terms of reference types,there are few specific reference applications,and most of them are general reference applications.The author believes that "application by reference" should be standardized through unified expression and judicial interpretation.The continuous development of society will inevitably put forward new legislative and judicial requirements for the Civil Code.Civil law scholars should continuously conduct theoretical and practical research on the legislative technology and methodology of civil law that is in line with the development of the times.At the same time,judicial practitioners should constantly learn theoretical knowledge,summarize practical experience,and form a reasonable balance between legislation and justice,theory and practice,promoting the continuous progress of China’s rule of law cause.