Abstract
Through comparison between the General Provisions of Civil Law and General Principles of the Civil Law, we can find that, the General Provisions of Civil Law retains the main structure and contents of the system of general provisions in General Principles of the Civil Law, but adds, deletes or amends the specific rules; in addition, some contents are controversial to a certain extent.
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Notes
- 1.
See Drury D. Stevenson & Nicholas J. Wagoner, Bargaining in the Shadow of Big Data, 67 Fla. L. Rev. 1337. John O. McGinnis & Russell G. Pearce, The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services, 82 Fordham L. Rev. 3041.
- 2.
Hu (2015).
- 3.
If the article 109 and 110 is the general enumeration of general personality right and types of personality rights, the cause of action should correspond to part one “dispute over personality rights”.
- 4.
A dispute still exists in whether the Civil Code is the “general provisions-specific provisions” structure or “general provisions-specific provisions-liability provisions” in the future. It mainly relates to the orientation of the Tort Liability Law. However, no effect is left on the basic judgment of the orientation of the General Provisions of Civil Law.
- 5.
Liu (2015).
- 6.
The computer adopts the binary system, the data unit is Byte. KB (kibibyte) is equivalent to 1024 bytes. The next unit is MB (mebibyte), which is equivalent to 1024 KB. By analogy, TB, PB, EB, ZB are 230, 240, 250, 260, 270 bytes. If 1024 is slightly made to 1000, it is 103. The threshold order of magnitudes TB of big data is slightly more than 1012 bytes.
- 7.
IBM Institute for Business Value (2012).
- 8.
In the setting of order of magnitudes of big data, even if the angle is slightly different, Professor Bai Jianjun also has similar empirical viewpoints: “if the total is 10,000,000 or above, the increase of sample proportion does not work actually.” See Bai (2015).
- 9.
- 10.
Article 4, the Provisions of Supreme People’s Court on Quotation of Normative Legal Documents such as Laws and Regulations in Judgment Instruments (F.SH. [2009] No. 14) has defined the scope of judgment basis of civil judgment instruments: “The civil judgment instruments shall quote laws, legal interpretations or judicial interpretations. The administrative regulations, local regulations, autonomous regulations or separate regulations which must be applied may be directly quoted”.
- 11.
If the applicable causes of action are less than 10, only the actually applicable causes of action are calculated.
- 12.
Main considerations of this judgment: firstly, the relatively high times of application may be partially due to the relatively large absolute number of main applicable causes of action of this article. It shows that the judicial application demand of this article is relatively high. Secondly, in the judgment, some judges do not quote all legal norms which should apply. This possible fact can only deduce that this article has a relatively high judicial demand. Thirdly, some articles of law have the behavior norm or judgment norm nature. The relatively low times of application do not affect its value as the behavior norm, and can only deduce the higher system demand.
- 13.
This description of “general provision nature” does not represent that this rule should be stipulated in the General Provisions of Civil Law. It may be stipulated in the general provisions of the Property Law or the general provisions of the Contract Law or even other legislations which adopt the “general provision-specific provision” structure. Within the scope of sample of this chapter, it is embodied as the general provision nature of the General Provisions of Civil Law.
- 14.
No. 1 cause of action for which the principle of equality is applicable is “dispute over liabilities for traffic accident of motor vehicle”, and the times of application are 146, accounting for 31.9%. Relatively great effects are left on the proportion of application. The Writer is surprised at it. However, according to experience of the Writer, for the cause of action or articles if the cases are fewer than 200, the big data analysis cannot be done. For the articles or causes of action, if the cases are more than 1000, the effects of big data analysis are relatively good. Therefore, the further analysis can be done only after the data size meets the standard in the future.
- 15.
In the remaining articles of Section 2 “Agency”, Chapter 4 “Civil Juristic Acts and Agency” in General Principles of the Civil Law, Articles 67–69 are only applicable for the entrusted agency. However, the enumeration provisions of Article 70 have restricted its applicable scope of cause of action.
- 16.
The “individually-owned business and leaseholding rural household” systems are retained in the General Provisions of Civil Law. The “individually-owned business and leaseholding rural household” systems were once deleted in Chapter 2 “Natural Person”, Volume 1 “General Provisions”, the Draft of Civil Code in 2002. Some scholars think that the concept of “household contractual management” should be abandoned in the Chinese laws, and the individual of rural collective economic organization member acts as the main subject of land contractual management right. Refer to Zhou (2009). Some scholars think that the rural land contractual management household is breaking up, and the individualism system construction should be stuck to in the future. Refer to Shen (2016). In addition, on April 30, 2015, at the seminar of civil subject legislation issue of the Expert Proposal of General Provisions of Civil Law of Civil Code of the People’s Republic of China (Draft for Comment) held in Southwest University of Political Science & Law, Professor Xu Mingyue and Professor Sun PENG thought that the leaseholding farm household was not necessary any more. However, Professor Ma Junju thought that the individually-owned business and leaseholding farm household were designed based on the national conditions in the initial stage of the reform, and the changes took place in the current conditions. If the concept of individually-owned business and leaseholding farm household is still adopted in the future, it is relatively backward. Refer to Chen (2015).
- 17.
Karl (2013).
- 18.
The modified Civil Code of France has deleted the relatively-short special limitation of action.
- 19.
Li (2016a), the document at the 21st Session of the Standing Committee of the Twelfth National People’s Congress.
- 20.
It is explicitly specified in this point of such judicial interpretations that: “(1) the territorial jurisdiction of dispute case about joint operation contract differs due to different joint operation forms: 1. The dispute case about corporate joint operation contract is governed by the local people’s court of main working body of corporate joint operation entity. 2. The dispute case about partnership joint operation contract is governed by the people’s court in the registration place of partnership joint operation entity. 3. The dispute case about cooperative joint operation contract is governed by the local people’s court of the Defendant.”
- 21.
- 22.
- 23.
Some scholars think that the micro and small individual businesses have great burden due to the fact that the current laws and regulations uniformly stipulate the commercial registration system of individual businesses. It is suggested that the micro and small individual businesses should be exempted from the commercial registration obligation. Refer to Shi and Li (2012).
- 24.
Wang (1986).
- 25.
Zhang (2005).
- 26.
http://www.saic.gov.cn/zwgk/tjzl/zxtjzl/xxzx/201510/t20151030_163438.html, the latest access time: August 31, 2017.
- 27.
Ma (1986).
- 28.
The No. 1 percentage of application is over 70%, it is thus clear that the nature of general provisions of individual partnership is weak.
- 29.
Hu (2012).
- 30.
Li (2016b).
- 31.
About the thinking of this codification process, see Wang (2014).
- 32.
Zhu (2005b).
- 33.
Article 168 of the Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law provides that: “For personal injury that is obvious, the limitation of action for compensation shall be computed from the date when the person suffers from such injury; if the injury is not found then and there, but is diagnosed after examination to be caused by the infringement by proof, the limitation of action shall be computed from the date when the condition of the injury is diagnosed”.
- 34.
Li and Lai (2005).
- 35.
Hou and Li (2012).
- 36.
Zhu (2005a).
- 37.
The article of the highest times of application of the General Principles of Civil Law is Article 108 Obligation Discharge, and it is 355,107 times. In the extremely high times of application, “dispute arising from private lending” is No. 1 and it is 215,624 times. However, the percentage of Top 10 causes of action of this rule is 88.92% and the general provision nature is relatively weak.
- 38.
Subject to Paragraph 2, Article 105, the General Provisions of Civil Law of the People’s Republic of China (draft for solicitation of opinions for first deliberation) on July 5, 2016: the obligatory right is the right of right holder to request for any act from particular obligor owing to contract, unilateral promise, tort, voluntary service, unjustified enrichment or other provisions of law.” the cause for unilateral promise obligation is included, but the provisions for unilateral promise is deleted in the later draft.
- 39.
Qiu (2004, p. 395).
- 40.
Qiu (2004, p. 394).
- 41.
See Wang (2010).
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Wang, Z. (2020). Big Data Analysis on Deletion or Retention of Several Legal Norms in the General Provisions of Civil Law. In: On the Constitutionality of Compiling a Civil Code of China. Springer, Singapore. https://doi.org/10.1007/978-981-13-7900-0_10
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