Friday, 01 July 2016 00:00

Era of the civil code of open, involving his right to you and me

A draft, review the general civil law of the National People's Congress.

On June 24, 2015, the Chinese law into civil code compiling project leading group and China research organization of the civil code of the People's Republic of China, the general civil law expert proposal draft "officially submit legal work committee of the NPC standing committee. One year later, on June 27, 2016, the standing committee of the National People's Congress for the first time, review the general civil law draft a review (hereinafter referred to as the "draft"), which means that China's civil code compiling key step, finally a historic "era of the civil code" is about to open it.

As is known to all, the civil code will be used by the general and each composed. General encoding rules in civil activities must follow the basic principles and general rules, and various parts; All the points in the general part make up on the basis of the civil system for specific operational rules, including contract, property rights, tort liability, marriage and family and inheritance, etc. The general rules and each form an organic whole, Shared with protecting the legal rights and interests of civil main body, adjust the task of civil relationship. This is a general review of the National People's Congress draft. The draft civil law general parts can be divided into chapter 11, respectively is the basic principle, the natural person, legal person, unincorporated organization, civil rights, civil juristic ACTS, agency, civil liability, the statute of limitations and scheduled period, during the calculation, bylaws, a total of 186 articles. As a civil code compiling work of the most important core foundation, the draft of the review by the high attention from all walks of life. A what new stipulation in the draft, if after the approval and will be what kind of impact on our lives? Shanghai haihua yongtai law firm (WeChat ID: Hiwayslaw) for the first time to do some reading.

Second, the characteristics of the draft civil law general

Draft added provisions to protect the interests of the fetus, the limited capacity for civil conduct the age limit standard of minors from the age of ten to six, perfected the guardianship system; According to the legal person to set up the different purposes and functions, the legal person is divided into two types of corporate for-profit and nonprofit, gives "unincorporated organization" by the civil main body status, and discussed the rules; Inherited the practice of the general principles of the civil law, have discussed with the kind and content of the civil rights, personal rights and property rights, intellectual property, network virtual property and data information, such as new object made provisions for civil rights; On the basis of the current law perfected the legal act and the requirements of the acting part; To further improve the civil rights relief channels and means to suffer after; Absorption system of judicial practice experience of the statute of limitations for the change, the general statute of limitations from two to three years. Overall, compared with has promulgated civil special law of our country, the draft of the progress is obvious, the author will carry out one by one under the comb.

1, the fetus is not born as has the capacity for civil rights

Unborn fetus before, his father died, so the fetus has inheritance? According to our current inheritance law stipulates that heritage segmentation, reservation shall be made for the share of an unborn child. At birth, if the baby is stillborn fetus, share reserved shall be dealt with in accordance with statutory succession. This is called "treu system" regulation, although have rights and interests of the fetus protection, but may not be comprehensive. In law, capacity for civil rights is the precondition of a person can enjoy civil rights, if there is no capacity for civil rights will not enjoy and exercise of civil rights. Previous civil legislation did not explicitly give fetal capacity for civil rights, the resulting doubt that pregnant women body rights by a third person, fetal damage compensation claims of independence? With the development of The Times, the interests of the fetus protection is not limited to the specific situation, should offer more comprehensive protection rules. This review a draft of the specific protection principle are put forward for the interests of the fetus. Article 16 of the draft: involving inheritance, accept the gift, such as the protection of the fetus's interests, the fetus as has the capacity for civil rights. But, fetal birth did not survive, its capacity for civil rights from the beginning does not exist. Draft that natural person's capacity for civil rights started in birth, the fetus is not yet born, in principle, have no capacity for civil rights. But to protect the inheritance of the fetus, accept the gift, such as rights, it is necessary when the fetus's interests have to be protected, endows the fetus civil rights. This provision real legislation to implement the people-oriented concept, reflects the degree of the development of our country law civilization.

2, 6 years old children can play soy sauce

Children play soy sauce is simple and common civil behavior. So, how old do children go out to play soy sauce, the behavior to get legal recognition and protection? The current law of the people with limited capacity for civil conduct is the minimum age of ten years of age. Draft that limit down to six years old, rules: no less than six years under the age of 18 people, to restrict person of civil action competence, can independently implement pure profits of civil juristic act or his age, intelligence that meet the needs of civil juristic act. Draft thinks, with the development of economic and social life and the improvement of education level, minors' physiological and psychological maturity and cognitive ability are improved, decrease the age is conducive to its engaged in his age, intelligence that meet the needs of civil activities, this part better respect minors autonomous consciousness, protect their legitimate rights and interests. In addition, our country compulsory education law regulation is six years old, so will restrict person of civil action competence age lower limit prescribed for six years old, is also related to this.

3, the life cannot provide for oneself should be care of the elderly

Minors, vegetative patients, mental patients, patients with dementia, the civil juristic ACTS will be done by their guardians as statutory agents. How to determine the guardian? What responsibilities should bear? The general principles of the civil law only for minors and the mental patient set up guardianship system, but lack of the elderly guardianship system. The draft widened the scope of the guardianship system in China, the intellectual disabilities as well as lost or partially lost due to disease of the cognitive ability of adults of identification into the ward area, it is not only beneficial to protect the personal property rights of these people, but also to deal with an ageing population, better maintain the rights and interests of the elderly.

4,corporate legal person will only for-profit and nonprofit

The our country present civil law general principles of the legal person is divided into an enterprise as a legal person, corporate bodies corporate, institutions, social organizations, etc. , however, with the rapid development of economic society, great changes in social organization form, foundation, private non-enterprise units, social service agencies such as the new organization form, current law is hard to fully into, need to make an adjustment in the law. To this, the draft will be a new legal person, namely "for-profit legal person" and "non-profit legal person", clear in order to obtain profits and assigned to its shareholders or other investors such as member for the purpose of the establishment of a legal person, as a non-profit legal person; For public welfare purposes a legal person or other non-profit purposes, for the non-profit legal person. Non-profit legal person shall not be to its members or to set up the distribution of profits. In general, more adaptable to China's national conditions, the new classification for various types of social organization, to improve the social organization legal person governance structure, to strengthen the guide of this kind of organization and standardize, promote social management innovation.

5, the network virtual property, data information will become

In the information society, big data are changing our life. For all kinds of data information, and "QQ COINS", online equipment of network virtual property, such as how to determine its ownership, and how to protect, becomes important and urgent. General rules of civil law legislation must be embodied under the environment of rapid technological development, realize the comprehensive protection of private rights; Must reflect the high-tech era and the era of knowledge economy, the effective protection of the intangible property rights. In order to adapt to the needs of the development of the Internet and big data era, the draft of network virtual property, data, information and other new stipulates the civil right to object. Specifically, the draft regulations, civil subject shall have the right of property rights, specific right and clear legal provisions or the network virtual property as the objects of property rights, in accordance with its rules. Civil subject at the same time, the draft regulations shall have the right of intellectual property rights, and enumerates the works, patent, trademark and other 9 kinds of object, including the "data". This rule will make the our country civil code compiled with strong sense of time, will in the world leading the era of big data to change the direction of the civil law, is of great significance.

6, the statute of limitations by extended to three years for two years

The holder of the statute of limitations is to avoid "sleep lying on the right," urged the exercise of rights and design of the system, once the obligee fail to exercise the right, within the statutory period after the expiry of the period, rights are not protected by law. In recent years, the profound changes in social life, the way to trade with the type and continuous innovation, the rights and obligations relations more hasten is complex, generally reflect the rights of the two years in the judicial practice exercise time is shorter, therefore, the draft shall be appropriately extended, from two years of the statute of limitations extended to three years.

Three, endnotes

In August 2014, the fourth plenum of the communist party of China (18 scrutinised and subsequently passed on comprehensively advancing the rule of law "of the central committee of the communist party of certain major issue decision", the decision in the "perfect constitution as the core of the legal system of socialism with Chinese characteristics," strengthen the implementation of the constitution is pointed out in part, to strengthen the construction of legal system of the market, compiling civil code. Nowadays, since the founding of the sixth civil code codification movement has officially kicked off. Compiling civil code meaning not is not important. French thinker montesquieu said, in the civil law in the motherly eyes, each one is the whole country. Civil law is the record of social life and express life from cradle to grave, surroundings. For civil subject is of great significance not only, also have important influence in the field of business, through compiling the civil code, improve the basic rules for trade, improve the market order, and to provide basic follow for commercial activities, so as to promote the healthy development of socialist market economy. We are looking forward to the far-reaching code can at an early date through its people.