民法的人文关怀_英文_

Social Sciences in China Vol. XXXIII, No. 3, August 2012, 46-66 ISSN 0252-9203 © 2012 Social Sciences in China Press DOI: http://dx.doi.org/10.1080/02529203.2012.702941 http://www.tandfonline.com Civil Law: Its Humanistic Concerns Wang Liming School of Law, Renmin University of China 比照近代民法以财产法为中心，现代民法强化了人文关怀，主要表现为从以财产 法为中心到人法地位的提升，并广泛体现于民法中主体 制度 关于办公室下班关闭电源制度矿山事故隐患举报和奖励制度制度下载人事管理制度doc盘点制度下载 的发展、人格权的勃兴、 合同 劳动合同范本免费下载装修合同范本免费下载租赁合同免费下载房屋买卖合同下载劳务合同范本下载 制度的发展、物权法的发展、侵权法的发展、婚姻家庭法的发展等各个方面。中 国未来的民法典应当以人文关怀构建价值理念，注重对人的自由和尊严的充分保障以 及对弱势群体的特殊关爱。基于这一理念，在中国未来民法典中有必要增加人格权法 和侵权 责任 安全质量包保责任状安全管理目标责任状8安全事故责任追究制幼儿园安全责任状占有损害赔偿请求权 法编。在中国民法的适用等方面更应强化人文关怀。 关键词：人文关怀 民法典 价值理念 人格尊严 In contrast to early modern civil law, which centered on property law, modern civil law shows intensifi ed humanistic concerns. This is mainly refl ected in the rising status of personal law, and is also widely evidenced in the development within civil law of the subject, personal rights, the contract system, real right law and tort law, as well as marriage and family law. China’s future civil code should construct civil law values based on humanistic concerns and highlight the full protection of human freedom and dignity and special care for disadvantaged groups. In line with this idea, it is necessary to include law on personal rights and tort law in the future civil code. Humanistic concerns should be strengthened in the application of civil law. Keywords: humanistic concerns, civil law code, values, personal dignity Civil law, the basic law of civil society, also provides the basic regulation for the protection of private rights. At present, in this key period in the formulation of China’s civil code, it is especially important to stress the necessity of making the code adhere to realities and be oriented toward the future. It should not limit itself to focusing on the design of specific systems and regulations, but should be concerned with the values thereof. “By virtue of its abstract concepts and systems, the image of classical civil law became that of a self- contained system of scholarship from which one grasps with diffi culty the modern image of Wang Liming 47 civil law.”1 Studies of civil law cannot be confi ned to its external system or logical relations, but should rather set out from its values and, through historical investigation, gain an accurate grasp of its tendencies, so as to base it on a more scientifi c and more complete value system. With the values of the humanistic concerns of civil law as its basis, the present paper endeavors to expound its implications and its weighty infl uence on the improvement of the institutions and system of civil law. I. Humanistic Concerns of Civil Law: From Centering on Property Law to Elevating the Status of Human Law In early modern civil codes, relationships of property ownership and exchange formed the main subject of civil law norms. The centrality of property rights found expression chiefl y in the control of external wealth; the law clearly neglected the spiritual dimension of human existence and simply materialized the diverse connotations of humanity.2 In this context, the value of man’s personal existence independent of property was far from clear. This constitutes the background of the Jhering’s famous proposition: “He who encroaches upon the property of a person encroaches also upon that person’s human dignity.”3 In terms of the historical development of civil law, it was the Jus Ro manum that took the lead in adopting an abstract approach to developing and stipulating the abstract relations of private property,4 to lay down a system of independent personal right, obligation and real right and set out a whole system of private law. In this system, the exchange and ownership of property was the focus of readjustment; while there were regulations on personhood, the focus was more on “status” laws relating to eligibility for rights, which differed in meaning from the personal rights of modern law. Under the Jus Romanum, persona was used only to indicate a certain status.5 With the advent of the Middle Ages, the Jus Privatum system was found to be totally at loggerheads with canon law and the feudal land system and relations of dependency, so the Jus Romanum fell into a long silence. This lasted until the fi nal years of the Middle Ages, when the development of a commodity economy along the Mediterranean coast made property transactions more and more complex, providing a foundation for the revival of the Jus Romanum and at the same time meeting the needs of the Europe of a later day when the seeds of capitalism sprouted. In the era of legal codifi cation, civil law, represented by the French Civil Code, aimed to eliminate feudal society’s oppression of man, oppose feudal trade barriers and encourage the development of a market economy. The French Civil Code adopted a three-part model 1　Kitagawa Zentaro, The Civil Law System of Japan, p. 115. 2　Xue Jun, “The Protection of the Person: The Basic Value in Drawing Up the Chinese Civil Code.” 3　Rudolf von Jhering, The Struggle for Law, p. 21. 4　Karl Marx, “Critique of Hegel’s Philosophy of Right,” p. 280. 5　Zhou Nan, On the Jus Romanum, p. 106. 48 Social Sciences in China consisting of statuta personalia, statuta realia, and ways to obtain property rights. Design of the statuta personalia focused in the main on the affi rmation of equality among men and ascertaining the ownership of property; as a result, property rights remained the core of the code as a whole,6 as was noted by the French scholar Savadi er: “In contrast to laws having to do with persons, the (French) Civil Code bestowed the dominant position to laws having to do with property.”7 This property-centered character underwent little change in the German Civil Code. While in structure it adopted a fi ve-part model (General Principles, Right of Obligation, Real Right, Kinship and Inheritance), its core remained the sections on Right of Obligation and Real Right, and stipulations on the subject in the chapter on General Principles continued to center on the ownership and transactions of property. In the formulation of the German Civil Code, little importance was assigned to protecting the dignity of the individual. The law’s defi nition of the natural person was too simple and overlooked quite a few important rights of the person.8 Also, in terms of tort liability, the Civil Code limited its consideration to damages and treated them under the law of obligation, while imposing a rather strict limit on compensation for psychological damage. Not long after its proclamation, the German scholar Werner Sombart (1863-1941) noted its bias in “giving precedence to property rather than man.” As the Code’s very system had been designed to meet the demands of the commercial capitalist class, little wonder that it embodied that principle of “giving precedence to property rather than man” peculiar to the bourgeois class. Laws on the legal status and legal relations of the person yielded to laws on property.9 The very absence of the rights of the person in the German Civil Code was why, after WWII, German courts had to resort to the clauses on basic rights in the country’s constitution, instead of its legal code, to develop the rights of the person in general. This refl ected the fact that the German Civil Code had not given law on the rights of the person the status it should have had.10 The fact that the civil codes of the early modern period should have come to center on property law, or display what one might call a “pan-property” tendency,11 was due not only to the infl uence of the traditional civil law system but also, in particular, to their close relations with the socio-economic circumstances of their age. Both in its free and monopolistic stages, capitalism was characterized by the expansion of investment and encouragement of the creation of wealth, and the law, including civil law as a whole, had to serve this goal.12 Given the socio-economic background of the times, this practice was hardly inappropriate. Today, 6　Xie Huaishi, “Studies in the Civil Codes of Continental Law Countries.” 7　Eiichi Hoshino, Man in Private Law, p. 29. 8　Dieter Medicus, Allgemeiner Teil des BGB, p. 25. 9　Dieter Schwab, Einführung in das Zivilrecht, p. 31. 10　Xue Jun, “Exposing ‘General Human Rights’—Also on ‘System Consciousness’ in the Study of Comparative Jurisprudence.” 11　Xue Jun, “The Protection of the Person: The Basic Value in Drawing Up the Chinese Civil Code.” 12　Max Weber, Collected Works of Weber, vol. IV: Economy and Society, pp. 37-39. Wang Liming 49 with the development of the market economy and the advance of science and technology, weighty changes have occurred in the socio-economic pattern, so it is but natural that the development of civil law should present an increasing inclination toward humanistic concerns. By humanistic concerns is meant full protection of the freedom and dignity of man and special concern for disadvantaged social groups, with an emphasis on the protection of the person, which is taken to be the value basis of civil code.13 The present paper holds that “protection of the person” does not constitute an end in itself; rather, it is but a means to realize humanistic concerns whose ultimate goal is the achievement of human freedom and dignity. “The person” here refers, on the one hand, to the individual and his free pursuits, treated concretely and historically; on the other hand, it refers also to the person of ethics, whose dignity should be respected and whose basic personal interests should be protected. Humanistic concerns means, in this sense, making “man’s enjoyment of a decent existence” the goal of law and realizing what Marx called “the all-round emancipation of man.” With their deep social and historical roots, the humanistic concerns of civil law are hardly an invention of the contemporary age. In ancient Greece, the sophist Protagoras proposed that “Man is the measure of all things”; in ancient Rome, such systems as personal law, private wrongs, etc., did display some degree of concern for everyone except slaves, even if they fell short of the all-round physical and personal protection provided by modern law. Of course, man had to wait till the Renaissance for the fi rst real emergence of humanist ideas, while it was the thinkers of the Enlightenment who further enriched the humanist connotations of early modern civil law. For example, the ideas of human rights, freedom, equality, etc., advocated by such thinkers as Voltaire and Montesquieu greatly helped the formation of such concepts as equality of persons, freedom of contract, autonomy of private law, etc., in early modern civil law. By this time, the basic framework of humanism had already taken shape in capitalist civil law. The fundamental characteristic of humanism lies in its focus on man himself, stressing his dignity and his spiritual freedom.14 Humanism holds that “the individual human being has a value in him or herself—we still use the Renaissance phrase, ‘the dignity of man’—and that it is respect for this which is the source of all other values and of human rights.”15 From the latter half of the 18th century, Kant’s philosophy of reason began to make a significant contribution to the establishment of the status of man as subject, holding that the absolute value of mankind lies in the dignity of man, with all human capacities as its basis: that man is an end in himself, not a means, and can only be taken as the end, not as the means.16 This means, according to Li Zehou: “Kant stresses here that while things have a monetary worth, man has only his inner worth; one cannot place a price on him for being useful to somebody. As a part of nature, man is hardly superior to an animal nor more 13　Xue Jun, “The Protection of the Person: The Basic Value in Drawing Up the Chinese Civil Code.” 14　Meng Guanglin, A History of the Renaissance in Europe: Philosophy, p. 27. 15　Alan Bullock, The Humanist Tradition in the West, p. 234. 16　Immanuel Kant, Anthropology from a Pragmatic Point of View, p. 4. 50 Social Sciences in China valuable; but when he exists as noumenon and as the subject of practical reason (morality), he transcends all price.”17 It can be seen that the rise of the philosophy of reason made protection of the independence and dignity of the person into the core mission of society and, going further, the goal of the law as a whole. Once such beliefs had been established by the humanist movement, people came to believe that law could be constructed on the basis of reason. This was the impetus for legal reform, quickening the alliance between reason and civil law and bringing about the offi cial codifi cation of the law. The civil law codes of France, of Germany, of Austria, etc., were all products of enlightenment thought, embodying the humanistic spirit to some degree.18 In terms of values, the hierarchical ideas of feudal law were replaced by the humanistic ideas inherent in early modern civil law, while the hierarchical feudal system was replaced by the independence and equality of persons. However, compared with the values of humanistic concern advocated in this paper, it is clear that the philosophy of reason represented by Kant neglected the differences among men with regard to ability, intelligence, wealth, etc., and especially with regard to the special protection society provides for the disadvantaged, even though it did focus on the universal protection of man’s freedom.19 Hence there is a fairly large gap between the humanism of those days and the humanistic concerns of today. After WWII and, in particular, in recent decades, the connotations of humanistic concern in civil law grew ever more plentiful and its status ever more apparent. This can be seen not only in the concrete institutions of civil law but also in the profound infl uence these concerns exert on the external system of civil law as a whole.20 In the fi rst place, respect for and protection of the person was raised to unprecedented heights and the human rights movement spread vigorously throughout the world. Correspondingly, man’s dignity and self-respect and his pursuit of a high-quality material and spiritual life found their full expression in civil law. The inhuman acts that took place on a wide scale during WWII and the revulsion they evoked after the war, as well as the human rights movement that began in the 1960s, all helped to promote and strengthen modern civil law’s concern for human dignity and respect. For example, the very fi rst article in the Basic Law of the Federal Republic of Germany declares that “the dignity of man is inviolable,” thus making “the dignity of man” a fundamental provision of the Basic Law. With the advent of the 21st century, respect and protection for human rights have become a universal consensus throughout international society. In the second place, industrialization and marketization have resulted in ever widening social polarization. A tiny minority of people have come to possess the lion’s share of the world’s wealth, while the phenomena of social inequality and injustice are becoming ever more striking. In these circumstances, the traditional view that freedom of contract would lead 17　Li Zehou, A Critique of Critical Philosophy, p. 290. 18　Alan Watson, The Making of the Civil Law, p. 144. 19　Stamatios Tzitzis, Qu’est-ce que la personne?, p. 84. 20　Zhu Yan, “Transformation of the Social Foundation and Construction of a Dual System of Civil Law.” Wang Liming 51 directly to social justice has become totally divorced from reality. On the contrary, the abuse of private property, manipulation of formal contracts by big business, the powerful position of monopolies in given fields, etc., have created all kinds of social injustice. This raises profound questions about people’s deep-rooted faith in the rationality of the property rights provided in civil law. Should modern civil law fail to be supplemented with the values of profound humanistic concern, this will result in further social injustice. In the third place, the rapid and vigorous development of modern science and technology has placed new demands on humanistic concerns with regard to civil law, acting as a new motive force for their development. Development of gene technology has made the protection of individual privacy all the more urgent and the emergence of test-tube babies has changed the traditional concept of life, while techniques for the production of artifi cial organs, stem cell research and development of cloning and tissue engineering have paved the way for mankind to ultimately solve the question of sources of human organs. At the same time, the science and technologies mentioned above pose new challenges to life, the body, health and other rights of the person, with the growing possibility of infringement of civil rights (especially the rights of the person) with ever more serious consequences; hence civil law needs to provide further protection. In the fourth place, following the fundamental satisfaction of man’s basic material needs, his spiritual needs grow more prominent. According to Maslow’s theory, man’s needs fall into fi ve categories. These are, from the lower to the higher level: physiological needs; need for security; need for social relationships; need for esteem; and need for self-actualization. Once people’s survival needs are fundamentally met, their cultural and spiritual needs grow stronger, something which Maslow summed up as the need for self-respect.21 Undoubtedly, the challenges these social changes pose for civil/commercial law are revolutionary. Against such a background, the revision and complementation of the traditional system of civil law with the profound value ideas of humanistic concern is indispensable. After 1949, when China achieved “the people as masters of the country,” the value of man was accorded full respect and was fully expressed. However, owing to the prevalence of “leftist” ideology for quite some time and with the weakening of the idea of the rule of law, the idea of human-centered values was eroded for a while. After reform and opening up in 1978, the Party summed up and absorbed the tragic lessons of the “Cultural Revolution” and strengthened the construction of democracy and the system of law. With the deepening of reform and opening up, the socialist market economy system gradually came into existence. Striving for the great goal of a well-to-do and harmonious society, the Party and state have set up “taking people as the basis” as the governing idea. In terms of civil law, this means fully protecting the various rights and interests of citizens and respecting and defending their independence and dignity, making it possible for them to live with freedom and dignity. Consequently, the spirit of humanistic concerns embodied in our civil law differs in essence 21　Abraham H. Maslow, Motivation and Personality, pp. 40-54. 52 Social Sciences in China from the humanism of the West; it is the concentrated expression of the core values of socialism and is adapted to the social, economic and cultural development of our country at the present stage. It especially stresses a deep concern for disadvantaged groups, setting a full value on the freedom and development of the individual and striving to realize social equality and justice. During the three decades and more of reform and opening up, the General Principles of Civil Law of 1986 and the series of laws promulgated in the years that followed laid down the regulations governing the ownership and exchange of property as well as the framework of civil/commercial law indispensable to the development of China’s market economy, greatly facilitating the country’s socio-economic development. However, against the background of our consid