(A) the formulation of the "old civil law" and "code dispute"
In the sixth year of Meiji (1873), the Japanese government set up a civil law compilation course in the Ministry of Justice. The civil law was drafted in the ninth year of Meiji (1876), and the first draft was completed in the sixth year of Meiji (1 1). In Meiji 12 (1879), French experts were hired to come to Japan to entrust the drafting of the civil law. In Meiji 13 (1880), the Civil Law Compilation Bureau was established in the Ministry of Justice, and the drafting work was stepped up. The Civil Code Compilation Bureau once belonged to the Ministry of Foreign Affairs and later to the Ministry of Justice. French experts are in charge of property law, while Japanese experts are in charge of relatives law. Finally, the draft was completed in Meiji 2 1 (1888). The completed draft civil code is called the old civil code. The part of the old civil code that is equivalent to the first three parts of the current civil code (general provisions, property rights and creditor's rights) was drafted by Boisson Nader, while the law of relatives and the law of inheritance were drafted by Japanese jurists. From the specific content, although the basic framework of the old civil code still follows the French civil code, there are many differences with the French civil code. For example, the lease right is defined as property right; In the change of real right of real estate, the first buyer can fight against the second buyer even if it is not registered. [4]
In Japan, there is a debate between the line-breaking school and the line-delaying school about the implementation of the old Civil Code. At that time, the debate was not limited to legal aspects, but also combined with politics, involving the fundamental issue of founding the country. The core of the code debate is about the law of relatives, especially focusing on the family system. In the debate, the paper "Civil Law, Loyalty, Filial Piety and Death" by Sui Ji can stimulate national feelings most. He claimed that the old civil code destroyed the "mellow custom" inherent in the Japanese kinship system and would have a bad influence on the Japanese national system. As a result, in 1892, the Imperial Parliament passed the Civil Law and Commercial Law Delayed Execution Act. [5] In this way, a civil code full of modern colors died. On the surface, the dispute over the code is about the civil code, but in essence it is the conflict between Japan's inherent traditional culture and western modern thought. This conflict has always existed in the process of Japan's modernization, and this code dispute is the manifestation of this conflict reaching its peak. In order to reconcile this conflict, Japan had to amend the old civil code.
(B) the formulation of the "new civil law"
The new civil law is the current civil law. After the implementation of the old civil law was postponed, the Japanese government began to redraft the civil law. In the 26th year of Meiji (1893), a code investigation meeting was established, with Ito Bowen as the president, Saionji Kinmochi as the vice president, Shuijing Chen Zhong, East Yi Zheng Hiroshi, the United States and Senjiro as the drafting members, and dozens of other members. Under the principle of maintaining the old Japanese customs, especially the family system, this drafting was carried out with special reference to the first draft of the German civil law at that time. 1895, complete general terms, property rights and creditor's rights. These three parts were passed in parliament the following year and announced on April 27 of that year. Kinship and Inheritance was promulgated on 1898 (together with the law and the implementation law of civil law). All civil laws came into effect on July 6, 1898. This is Japan's "new civil law", also known as "Meiji civil law". This civil law has been in force until now. Among them, the kinship compilation and inheritance compilation were greatly revised after World War II.
Fourthly, the enlightenment of Japanese civil code to the compilation of Chinese civil code.
From the introduction of the formulation and development of the Japanese Civil Code, we can see that the basic guiding ideology of the formulation of the Japanese Civil Code is transplanting and absorbing, paying attention to practical results and eclecticism. Because Japan lacks the tradition of civil law, facing the requirements of western powers, only by learning from western countries with relatively complete capitalist legal system and mature legislative technology, especially Britain, France and Germany, can we learn from the achievements, transplant and absorb everything, and only by formulating legal systems consistent with major western countries can we realize our political aspirations; However, the lessons of the abortion of the old civil code made the new civil code pay special attention to the reality of Japan in the drafting process, summed up and combed the long-accumulated historical traditions and practical experience, inherited and carried forward the effective system for the content effect, and the Xinmin Code Compilation Committee also conducted a lot of habitual investigations on specific issues during the deliberation process, so as to make the relevant provisions conform to the local customs and national conditions of Japan as much as possible. /kloc-At the turn of the 9th century, the Japanese Civil Code, as the first civil code in Asia, undoubtedly occupied the most important position with its ideological significance and historical diffusion, and it is a truly great code that created the modern legal history of Asia. In today's contemporary China in the 2nd/Kloc-0th century, it is necessary to study, study and learn from the Japanese Civil Code, which has brought us a lot of enlightenment.
(1) On "Westernization" and "Localization"
The dispute between "Westernization" and "Localization" began at the beginning of the last century, but it has reached a small climax in recent years, and this dispute is just in the process of brewing and formulating the Civil Code, so it will inevitably have some influence. In the past century, China has studied the western civil law, or the modernization of China's civil law. What's the effect? Many scholars of jurisprudence and legal history have conducted in-depth research on this issue. Most scholars believe that it is the requirement of the times to inherit the advanced modern western legal culture and regulations, but we must pay attention to the legal culture and regulations rooted in China local society. The foundation here mainly refers to the traditional legal culture of China, the laws and regulations contained in the local society, and the new legal culture, specific system and social reality created by the people of China after the founding of People's Republic of China (PRC). The current civil code of China is to organically integrate the advantages of these factors, which is a very difficult process. Starting from the modernization of civil law, we should find the combination of "westernization" and "localization". We should keep the good things in China's tradition and reality, but we should also be brave enough to weed out the dross. We should learn from the western experience, but we should also choose between them. One thing is very obvious. The basic principles and transaction rules in civil law should be in line with international standards, while the kinship system and inheritance system should have their own characteristics.
As Mr. Xie Huaiyi said, "No matter which country has its own characteristics, no country or nation has its own characteristics. Therefore, it is also an important issue to distinguish one's own characteristics when inheriting foreign laws. It is certainly not good to copy foreign laws mechanically and blindly; It is also wrong to emphasize or even excuse your own characteristics and refuse to accept advanced foreign laws. " Therefore, when we learn from foreign laws, it is appropriate to emphasize the combination with the actual situation in China.
(B), about inheritance and innovation
The meaning of inheritance here includes the inheritance of China's traditional and modern civil law concepts and systems, especially the experience of China's legal system reform and construction since modern times, as well as the reference and absorption of civil legislation experience from other countries. Therefore, in terms of content, China's future civil code needs to inherit many contents. For innovation, content may be less than inheritance. But our focus, our goal and our ideal are innovation, because society is progressive, and our civil law should also develop with progress. The French Civil Code two centuries ago and the German Civil Code a century ago have a lot to learn, and we have been learning. Now, when we formulate the civil code of 2 1 century, we must look forward, not only in the excellent contents of the French Civil Code and the German Civil Code, but also based on the changes of the times. The times are developing and the society is changing. If we want to keep up with them, we should and must innovate. Innovation must take the opportunity of social progress and the development of civil law, be based on the reality of China and conform to the development of China. Just like Japan, with the development of social life, the civil code is constantly being added, deleted and revised, and many separate laws and regulations have been formulated as needed to make up for the shortcomings of the civil code. Although we know that it takes a difficult process for a new thing to be recognized and accepted by people, and this process may last for a long time, it is a new thing after all, and its advantages cannot be denied, and it will eventually be accepted by people. Therefore, our future civil code should have its own innovation, and our innovation is based on the spirit of the times and our national conditions!