The Expression of China's Traditional Legal Culture in Civil Code

Article 5 of the Civil Code stipulates that civil subjects should follow the principle of voluntariness when engaging in civil activities, which is the cultural inheritance of the concept of "two identities" in traditional laws. The contract in ancient society was called "harmony", also called "two harmony". For example, it is said in "A Brief Introduction to the Laws of the Tang Dynasty, Famous Cases IV" that "the same seller is the same". "Harmony" means "harmony without difference", which means that different subjects reach the realm of mutual voluntariness and mutual recognition through harmony, which is "harmony without difference". In terms of today's civil law, it is "autonomy of will", that is, the parties involved in civil activities enter into civil legal relations according to their own wishes without external interference.

"Two consistent" is the premise of the effective establishment of the contract. The inscription "Bogui" formed in the middle of the Western Zhou Dynasty is an obvious example: Bogui volunteered to sell four good horses and Yusheng, and Yusheng offered the price of 30 fields, and wrote a deed to separate them, each holding half. When Borg came back, he cast a bronze reed to record it. Another example is the existing land sales contract in the nine years of the Northern Song Dynasty (984), which records the fact that Ma Yin and others sold the land to Jin Shi as a cemetery. The full text 100 words, using the word "wish" three times. On the contrary, violating the principle of harmony in civil activities will not only lead to the invalidity of civil acts, but also the parties will be punished by law.

The principle of fairness and the concept of "law is as flat as water"

The principle of fairness stipulated in Article 6 of the Civil Code has a long history. The seal script of the word "Fa" is "Cloud", and its meaning is interpreted as "Flat as water, from water; If you are embarrassed, you can't touch it straight; Go, go. " Geng is a unicorn. Whenever there is a dispute, use its corner to touch the crooked party, so as to make the social order fair as water.

In ancient society, the concept that the law is equal to water is not only deeply rooted in people's hearts, but also consistently maintained by laws and regulations of past dynasties. "Zhang Jiashan Han bamboo slips" contains: "If the fire continues to burn, you will be fined four Liang, and the debt will burn." If a fire causes losses to others, it will not only impose a fine of four or two, but also bear civil liability for damages. According to Zi Jian, in the first year of Yonghui in Tang Gaozong, it was revealed that Zhongshu ordered him to buy other people's houses at a low price, and Dali Temple sentenced him to make amends with copper. According to the laws of the Tang Dynasty, the sentencing is obviously too light and unfair. Later, Sui Liang and Shao Qing of Dali Temple were both demoted. Ming Hongzhi's "Regulations on Seeking Punishment" stipulates: "Pawning farm tools and other things shall not be illegal." Such legislative provisions and judicial cases show that the spiritual value of justice and equality has never been lacking in China's traditional legal culture, and it is also an inexhaustible cultural heritage to promote the rule of law today.

The principle of honesty and the concept of "friends keep promise"

The principle of good faith stipulated in Article 7 of the Civil Code has rich cultural soil in traditional society. Mencius said, "Friends have faith". The concept of "friend" here does not refer to people who are close to themselves and have deep feelings, but to ordinary social relations. Anyone who deals with himself should regard himself as a friend, and the most important thing is the word "trust". In Chinese characters, "faithfulness" and "sincerity" can be mutually trained. Honesty is not only an important moral concept in ancient China, but also ranks fourth among the eight virtues of "filial piety, faithfulness, courtesy, honesty and shame". It is also the life creed of everyone to settle down. Therefore, there is a folk saying that "people can stand without faith, and businesses can flourish without faith".

The traditional legal system has made great efforts in maintaining integrity. April in Qiu Guan, Zhou Li: "Where the contract is written in Zong Yi, the contract is written in Dantu. ..... If you don't believe it, you will be punished with ink. " Important contracts must be engraved on the Yi vessels in the ancestral hall, while general contracts are written on red bamboo and silk. Those who break the contract in violation of good faith will be punished with ink, and people will know at a glance that they are "old lai" who do not keep good faith. The History of Criminal Law in Hanshu calls it "how painful it is to be punished without virtue for life". In the Sui and Tang Dynasties, those who violated the principle of good faith in civil activities were punished with a slap and a stick, and at the same time they were responsible for paying off debts. The Law of the Tang Dynasty stipulates: "If one horse violates twenty, twenty plus one, and the crime ends at sixty;" Thirty horses, plus second class; A hundred horses, plus a third-class soldier. Every order has compensation. " Song, Yuan, Ming and Qing basically followed this law, and there was no big change.

Because breaking promises is punished and the illegal cost is high, people who break promises in non-governmental economic exchanges are often willing to accept mediation to avoid suing the government for losses. This is the reason why folk mediation developed in ancient society, and mediation, with its function of timely and effective settlement of civil disputes, in turn promoted the concept of good faith to be deeply rooted in the hearts of the people. The civil code emphasizes that the civil subject "should follow the principle of honesty and credit and insist on honesty and trustworthiness", which is not only the inheritance of traditional legal culture, but also an effective response to the crisis of integrity.

Public order and good customs and the concept of "obeying human feelings by law"

The principle of public order and good customs defined in Article 8 of the Civil Code is in the same strain as the ancient tradition of "serving human feelings with law". Shen Dao, a representative of Legalism, said: "Legalism did not come from the world, not from the ground, but from the world, which is in line with people's hearts." Law is a rule made by human beings, but it is a human culture. Therefore, there is a saying that "legal law, courtesy follows human feelings". Only a reasonable legal system can contribute to the establishment of a just order and the formation of good customs; On the contrary, it may be immoral. For example, the "rule of law" in the Qin Dynasty enforced the "separation order" and forced the separation of father and son, which separated the due affection between relatives. After the Han Dynasty, Confucianism was promoted to encourage people with the same wealth to live together. In the Cao and Wei dynasties, the "home of differentiated sons" was ordered to prohibit the separation of father and son. From the Sui and Tang Dynasties to the Ming and Qing Dynasties, there were provisions in the law prohibiting "alien wealth", which not only advocated the moral fashion of filial piety and loving relatives, but also properly solved the social problems of supporting and respecting the elderly.

Since the late Qing Dynasty, family virtues such as "fatherly kindness and filial piety" and "husband and wife are righteous" have been mercilessly abandoned by many people. In today's society, alimony disputes are increasing year by year, and divorce disputes continue to soar; Social ethics such as "helping the weak and helping the poor" and "watching and helping each other" have been ignored, and there have been phenomena of helping the elderly and preventing them from being blackmailed and being falsely accused of being brave. In view of the unhealthy trend, the Civil Code stipulates in the marriage and family series that "families should establish a good family style and carry forward family virtues" and set up a "cooling-off period" in divorce by agreement. Within 30 days from the date when the marriage registration office receives the application for divorce registration, any party unwilling to divorce may withdraw the application from the marriage registration office; In the "civil liability" section of the editor-in-chief, it is stipulated: "If the rescued person suffers damage due to voluntary emergency assistance, the rescuer shall not bear civil liability." This regulation embodies the common sense of the people, which is undoubtedly an innovative development of the legal tradition of "justice, state affairs and human feelings" and will certainly provide a strong legal guarantee for building a harmonious family and beautifying social customs.