Starting with the guiding ideology of legislation and then analyzing this law, it may be more in-depth for every judge, lawyer and school teacher to master this law. The guiding ideology of legislation is clearly defined in the legislative plan. The formulation of this contract law is different from other laws. The formulation of every law in the history of New China is basically like this: an administrative department takes the lead and organizes a team. As soon as everyone came, they listed the outline, designed chapters, drafted articles and revised them repeatedly. However, the formulation of this contract law is to design the legislative scheme first, and the design of the legislative scheme is entrusted to eight experts to complete. Among the eight experts, there are two judges, one is Fan Li, vice president of the Supreme Court, and the other is He Xin of the Beijing High Court. At that time, he was the director of the research office and now he is the president of the application court. Both presidents are in their early forties. Among the other six comrades, the oldest is Professor Jiang Ping, who is in his sixties. Secondly, I was in my early fifties. Then there are those in their thirties and forties, such as Professor Wang Liming of Renmin University [the youngest, probably in his thirties]; Professor Cui Jianyuan of Jilin University; Professor Guo Mingrui of Yantai University; Zhang Guangxin, a researcher, is the deputy editor-in-chief of Legal Research, Institute of Law, Chinese Academy of Social Sciences. We don't design the chapter of contract law at the beginning, let's talk about the development of contract law first, that is, retreat. Let's discuss the development trend of contract law since this century, what changes have taken place in its spiritual essence and what new systems are there. What are the new systems, innovations and principles in the German, French and Japanese contract laws in civil law countries, the Anglo-American contract law in common law countries, and the United Nations Convention on Contracts for the International Sale of Goods? After discussion, we should first draw up the guiding ideology for making this law. * * * Five guiding principles.
1. The enactment of this law should proceed from the reality of China.
What is the reality in China? After discussion and consideration, we finally decided on four points. The first point is reform and opening up; The second point is to develop the socialist market economy; The third point is to establish a national unified market; The fourth point is to connect with the international market. Only these four points are the reality of China, and any other features are not the reality of China.
After confirming the reality in China, we should sum up our experience in contract legislation and contract judicature. This is a summary of the experience and shortcomings in the general principles of civil law, three contract laws, various contract regulations and a series of implementation regulations formulated by us since the reform and opening up. What is more important is the experience of the court, especially the opinions of the Supreme Court on general principles of civil law, economic contract law, technology contract law and foreign-related contract law, as well as the usual answers and replies of the Supreme Court. The most important thing is the announcement of the Supreme Court. Since the publication of 1985, the Bulletin has published many judgments, some of which are very typical and have created some new rules. All these should be considered and analyzed, and we should adopt whatever is successful, feasible and legal in China.
Then, learn from the successful legislative experience, precedents and theories of developed countries and regions. These developed countries and regions have created many new things and many new experiences in post-war legislation. Some important civil codes, such as the French Civil Code and the German Civil Code, have been revised after the war, and some separate legislation and rules created by the courts and judges need to be considered for reference. Since the war, courts in developed countries have also faced extremely turbulent and complicated social relations and extremely changeable social environment. In this case, many new and strange cases did not exist before the war, and there were no corresponding provisions in the law. Judges in these developed countries and regions have created some new rules and systems in the face of cases that are not clearly stipulated by law, and we should adopt and absorb them as much as possible.
In addition to foreign advanced legislative and judicial experience, we can't ignore Taiwan Province Province in China. The laws of Taiwan Province Province were enacted in China in 1929- 193 1 year. Their civil code was that of China at that time. Although it is now called Taiwan Province Civil Code, it is our own thing. The economic life of Taiwan Province Province has developed greatly in the future. When we experienced the turmoil of the Great Leap Forward and the Cultural Revolution, Taiwan Province Province seized this opportunity to develop its economy. As soon as the economy develops, many new problems arise, so its courts and judges have also created many new rules, which we should certainly learn from.
Drawing on the advanced contract legislation and judicial experience of developed countries and regions, China's contract law has become a unified law reflecting the objective laws of modern market economy. This is the purpose of the first guiding ideology. Our laws cannot be read behind closed doors, not only by our scholars, legislators and judges, but also by foreigners. Our market needs international communication, and our laws should not only be understood and mastered by ourselves, but also be mastered by foreign enterprises, entrepreneurs, judges and lawyers. How do we do this? Only when we adopt the same rules can we do it. The premise of what we usually call international integration is integration with legal rules, not integration with legal rules, not integration with economy. Therefore, in the first guiding ideology, I think it is very important to adopt the same rules that reflect the objective laws of modern market economy and coordinate with international practices and practices. This is not to say that it is completely in line with international conventions and international practices, but to say that it is coordinated. In other words, we are not copying international conventions and practices, because our country has reservations about some international conventions, and some practices may not be suitable for us. So we are talking about coordination. This is the first legislative guiding ideology, which is very important.
2. Fully reflect the autonomy of the parties.
Ensure that the parties enjoy full freedom of contract without violating the law. Contract law is nothing more than two independent, equal and free parties get together and decide their rights and obligations through consultation. Both sides should be independent, free and equal. If they are not equal, one person belongs to another, and the content of the contract cannot be decided. If they are not free, they can't control their actions, their thoughts, and it is impossible to sign a contract. So freedom of contract is the most basic requirement of modern market economy. Without freedom of contract, there is no market economy, which is very important. Imagine, under the condition of planned economy, are our enterprises equal, independent and free? No, our enterprise is subordinate to different levels, from the central economic competent department, such as No.1 Machinery Department, No.2 Machinery Department, No.3 Machinery Department and No.4 Machinery Department, to No.7 Machinery Department and No.8 Machinery Department, to provincial economic management departments, such as Machinery Department, to regional economic management departments, such as Machinery Bureau, as well as county and city industrial bureaus and machinery bureaus, and so on. In this way, the enterprise is at the bottom of the top-down administrative subordination relationship, full of the first-level administrative authority. We call it multi-level administrative links, administrative levels or administrative organs, and enterprises become the bottom of such an administrative relationship. At this point, it is no longer an enterprise. In the early 1980s, we introduced Soviet jurisprudence with some textbooks and works. The Soviet economic law calls enterprises economic organs, which is meaningful for this hierarchical management system. Under the condition of planned economy, enterprises are no longer independent producers, but a link in the vertical relationship. All its activities, from top to bottom, are arranged in strict accordance with the mandatory plan, including notes, telephone calls and instructions from superiors.
Are consumers free under the planned economy? No. The food we eat, the clothes we wear, the things we use and even the daily necessities are arranged according to the mandatory plan. We have food stamps, food stamps, cloth tickets, sugar tickets, egg tickets, meat tickets, etc. Our consumption life is completely arranged according to the mandatory plan.
Are farmers in our vast rural areas free? Not exactly. Rural production is based on what we call a three-level team, and commune, brigade and production team are subordinate to each other. The people's commune system based on the three-level team is integrated, and production and administration are combined. In this case, the farmers are gone, so who is the production unit? As a production organization and grass-roots unit, the production team, like our enterprise, produces according to the administrative mandatory plan. Farmers go to work, just like factory workers, according to the arrangement of the production team. They listen to the bell and whistle when they go to work, and they listen to the instructions of the production team leader every day.
Under the condition of administrative subordination, there are no independent, equal and free individuals, and economic life from industry to agriculture is carried out according to mandatory plans and instructions. Is there a contractual status? No. The planned economy system and the market economy system are diametrically opposite economic forms. Under the condition of market economy, we should try our best to cut off this subordinate relationship and cultivate independent, free and equal producers and market participants. We expand our rights and interests. Isn't the purpose of our enterprise system reform to finally get enterprises out of administrative subordination and become independent individuals? Become an independent subject to participate in the market for production and trading? The household contract responsibility system implemented in our rural reform, in the final analysis, is to let farmers get rid of the commune system based on the three-level ownership team and become independent producers, who can decide their own work independently. In this way, our reform is market-oriented from the beginning, and the premise of fully implementing the socialist market economy is to have these independent, equal and free market subjects.
How do these independent, equal and free market players carry out their activities? Under the market economy, there is no strict national plan and administrative instructions to strictly arrange the production of the whole country and a certain industry. In fact, it is impossible. Marxist economic theory tells us that market economy is not planned, but depends on market laws. When the price goes up, everyone will produce this thing. When the price goes down, everyone will produce other things, and the market mechanism will direct the operation. In this case, enterprises can not rely on guessing this market, but on signing contracts to organize their own production and exchange. Only after signing the contract can they put into production with confidence and the products they produce can be sold. It can be seen that under the condition of market economy, contractual relationship is the most basic relationship. It can be said that all economic relations under the condition of market economy should be contractual relations, and only contractual relations are the reflection of the characteristics of market economy.
Independent, equal and free parties negotiate and arrange their rights and obligations, which is called a contract in legal form. Therefore, the most basic principle of contract is freedom, and freedom of contract is the most basic expression of the essential characteristics of market economy. Since the reform and opening up, the freedom of enterprises and farmers has been increasing, but the freedom of contract in the three existing contract laws is not enough and there are many restrictions. For example, in the Economic Contract Law promulgated in 198 1 year, the contract management agency is specially stipulated, and the contract management agency has various means to manage the contract. A particularly beneficial measure is that the contract management agency can take the initiative to confirm that the contract is invalid. Strictly speaking, these systems reflect the planned economy, and restricting the freedom of contract of the parties directly conflicts with the market economy. 1993 Amend the Economic Contract Law and delete it.
When we formulate a new contract law, the most important thing is that our laws can embody the principle of freedom of contract. If we can't do this, our laws can't meet the requirements of the market economy. Therefore, the second guiding ideology is to fully embody the freedom of contract of the parties. As long as it does not violate the law, it is necessary to ensure that the parties enjoy full freedom of contract without interference from administrative organs and other organizations.
Of course, freedom of contract does not mean that there are no restrictions on the parties. Under the principle of freedom of contract, the parties to the contract should be restricted in two aspects: first, within the scope permitted by law; Second, under special circumstances, the freedom of contract of the parties can be restricted to a certain extent. The special case of the latter restriction is that it must be justified. As for what the justified reason is, it was discussed at that time. Everyone agrees that legitimate reasons include: protecting consumers, protecting workers, and safeguarding public and national interests. Only justified reasons can restrict the freedom of the parties to a contract in legislative provisions, which is essentially to restrict the abuse of freedom of contract.
3. Contract law should be advanced or forward-looking.
The characteristics of the times when this law was enacted and implemented are: it was enacted at the end of 20th century, passed in 1999, and mainly came into effect and implemented in 2 1 century. Our laws should be ahead of the times. We should face the 2 1 century, and not just see the immediate transition period. In other words, the new contract law should be able to meet the requirements of legal adjustment after the establishment of China's market economy. It is estimated that by 2025 and 2030, the transition period in China will be over and the socialist market economy will be basically completed. At that time, our market economy was no different from that of developed countries, and our contract law would still work. However, this does not mean that it should not be revised at all, nor does it mean that there is no need to formulate any new single-line law or certain contract-specific rules. Instead, the basic spirit, basic system and basic rules of the contract law will be effective and can meet the requirements of social life. This point is also controversial in the process of formulating contract law. There is a trend that we should focus on some characteristics of the current transitional period. When discussing the legislative plan, we seriously discussed and studied this issue. Finally, we believe that we should really face the 2 1 century, but at the same time, we should also consider some special problems in the transitional period.
What are the special problems in the transitional period? Because administrative intervention in our social life is still very serious, and there are many behaviors that infringe on the interests of the parties, there are many confusions in the economic life in the transition period, such as triangular debts, arrears of accounts, deduction in construction contracts and recovery of red envelopes, which leads to poor quality of construction projects, bridge collapse and serious personal and property losses. We can't ignore these serious problems when formulating the contract law. We must pay full attention to these problems and formulate corresponding countermeasures.
This is the third guiding ideology, that is, facing the 2 1 century, how to take into account some special problems in the transitional period. At the same time, it also points out that we can't accommodate those backward phenomena in the transitional period. For example, red envelopes and kickbacks are very common in the transition period, but we can't legalize them through legislation.
4. The value orientation of the new contract law should be economic efficiency and social justice.
The value orientation of law is the goal pursued by law. China's contract law should pursue economic efficiency and social fairness. The so-called economic efficiency, in our customary words, is conducive to the development and improvement of productive forces, the development of enterprises, and the profitability of enterprises; The so-called social justice is to achieve a general balance among different classes and people in the whole society, and the interests of the parties in a contractual relationship should be generally balanced.
The law regulates the whole society, which should have a basic balance of interests. Some people, such as consumers and laborers, are scattered and weak, and they cannot compete with entrepreneurs, large enterprises and large companies. In this case, if we only talk about formal justice, let's talk about freedom of contract. As long as the contract you signed through free negotiation is valid, we will protect it. The freedom of contract here is only a formal freedom. In fact, how can consumers and workers stand the test of big enterprises? Imagine a boy and girl in a mountainous area who went to work in the city, penniless and had not eaten their last meal. He saw a job advertisement and went to apply for a job at once. At this time, how dare he bargain with the business owner, how dare he fight for his rights, what health conditions, safety conditions, civilized production and working conditions, minimum wage conditions and so on. In other words, their strength is actually very weak and they can't compete with enterprises. What role should the law play at this time? The law must support these vulnerable consumers and workers. At this time, the law should not only be satisfied with formal freedom and justice, but also pursue substantive justice. The so-called substantive justice means that when the two parties to a contract are in an unequal state, for example, one party is an enterprise and the other party is a laborer, legal rules should first consider protecting laborers and consumers, and cannot adopt an impartial attitude.
We attach great importance to this point in the whole legislative process, and we are not unilaterally pursuing economic efficiency. If we pursue economic efficiency unilaterally, everything that is conducive to improving productivity, economic development and making money for enterprises is legal and protected, encouraged and supported, then counterfeiting can also develop production. As we all know, the rapid development of some places initially relied on counterfeiting; Some people broke out and later became big entrepreneurs, also by engaging in fake and shoddy goods or services. Do we have to admit fraud and deception in law? No We can't lose social justice. Social justice and fairness is a very important goal pursued by law. Without social justice and fairness, it is not a law, but a purely technical rule.
The laws of any country firmly grasp social justice, let alone our country. What we are building and developing now is the socialist market economy. Where is so-called socialism? It is reflected in the fact that our laws pay more attention to social justice, protect workers and protect the weak, so it is proposed to give consideration to economic efficiency and social justice in this guiding ideology. If there is a conflict between economic efficiency and social equity, which one takes precedence? Of course, social justice takes precedence. Implementing this guiding ideology requires that when formulating legal rules, we should not only pay attention to improving efficiency and promoting the development of productive forces, but also pay attention to safeguarding public interests, protecting consumers and workers, and maintaining market moral order. Never get rich by harming the interests of the state and the public, consumers and workers.
5. The new contract law should be operable.
Our textbooks all say that law is a rule of conduct. Contract law is first of all the rules of conduct for the parties to sign and perform contracts. But more importantly, the law is the adjudication rule, that is, the adjudication rule when judges adjudicate contract cases. This requires that the rules of adjudication should be operable, and each rule and provision should have specific constituent elements, legal effect and scope of application as far as possible, so that judges can follow them when adjudicating, and finally ensure that different regions and different courts adjudicate the same case and get the same verdict, thus maintaining the unity and fairness of adjudication.
The three existing contract laws are not operable. Some articles look good, but when they are really used to judge cases, they feel ambiguous and have no specific operability. Many articles are like slogans. We need to solve this problem now. This is very important, not to mention the influence of local protectionism and administrative intervention, that is, a completely fair and upright judge decides a case. If the law is not operable, it will also cause a big gap and cannot guarantee the unity and fairness of the judgment.