The general principles of civil law draft aspect: 6 year old child can play soy sauce?
xinhuawang· 2016-06-28 03:22:30
Xinhua news agency, Beijing, June 27 - Title: six year old children can "play soy sauce" it? - the general rules of civil law draft seven aspect analysis
reporter of Xinhua News Agency
6 on Sept. 27, "the people's Republic of China Law (Draft)" submitted to the twelve session of the twenty-first meeting of the NPC Standing committee.
as the foundation of the codification work guide to the general principles of civil law bills received high attention from all walks of life. What are the highlights of the draft? Reporters combed.
aspect one: the fetus also has a civil rights
a fetus is not yet born, the father died, then the fetus has inherited his father's property rights? With food safety and environmental pollution incidents, if pregnant women's rights in the aspects of the infringement, but her have the right to claim compensation, the right of compensation for her unborn fetus has no independent damage? … … in life, more and more cases involving the protection of fetus interests. For the consideration of the draft civil law of
to put forward the principle of protection of the interests of the fetus clear. The draft stipulates: the protection of the fetus's interests, such as inheritance, acceptance of the gift, the fetus is considered to have the capacity of civil rights. However, the birth of the fetus is not alive, the capacity of civil rights from the beginning does not exist.
China's Current Inheritance Law stipulates that the heritage should be retained in the division of the share of the fetus. At birth, the fetus is dead, the share of the retained by the statutory succession. This is known as the "special leave a system", it has been reflected in the protection of the rights and interests of the fetus. With the development of the times, the protection of the interests of the fetus is not limited to individual cases, it should put forward a more comprehensive protection.
"a country, a region of the development of the degree of legal civilization, the key to the protection of vulnerable groups, how to really implement the people-oriented legislative philosophy. Fetus can not protect their own interests, if the law can be protected, it is more able to reflect the development of the legal civilization. "Professor, Renmin University of China School of law China Civil Law Research Association Secretary General Wang Yi pointed out that this is the reason for this provision in the civil law draft.
aspect two: six year old child can "play soy sauce"?
soy sauce, a simple and common civil behavior. So, how much the child to play soy sauce, the behavior can be recognized and protected by law?
the minimum age of a person with limited capacity for civil conduct under the current law of our country is ten years old. The draft will be the limit down to six years, more than six years of age: provisions of minors under eighteen years old, is a person of limited capacity for civil conduct can be independent of the implementation of the civil legal act is purely profit or his age, intelligence to adapt to the civil legal act.
Wang believes that the codification of the civil code should not only emphasize the freedom of respect for adults, but also to take into account the nature of respect for minors. This should be reflected in the age standard to reduce the capacity for civil acts. With the development of modern living standards and raise the level of education, children's physical and mental development level is different from the past, now six years old child know something far more than the previous age child cognition, they have a certain ability to identify and determine, should have the right to independence of the civil legal act, such adjustments, there are to better protect the interests of children.
"children have their own interests and aspirations, according to their own will decide, adults will not impose their will on children. This change can be extended to a wide range of areas, including the names of the decision, if the parents do not agree the name can also amend the request.
and other experts pointed out that China's compulsory education law is six years of age, so will limit the age limit for civil behavior capacity of people to be six years of age, but also related to this.
three things: the old man is expected to be incorporated into the scope of protection of minors guardianship system
, vegetative state, mental patients, elderly patients with dementia, when they need to participate in social activities or interests need maintenance, who can make decisions for them? The answer is their guardian.
guardian in the end how to determine? What responsibilities should they take? What kind of person can become a guardian? Around these issues, the draft gives a more comprehensive specification.
"one of the highlights of this modification is to expand the scope of the protection of the object of guardianship system, which will give full play to the function of the guardianship system. "Fudan University law school associate professor Li Shigang introduction, the current general principles of civil law for minors and mental patients set up a monitoring system, the lack of the elderly guardianship system. And according to this modification, the mental patients other than adults in the case of lack of capacity of civil conduct can also become the object of guardianship. Not only that, if not normal adults worry about their future participation in social transactions or life, can also be pre selection of good guardian, rainy day, prevent trouble before it happens.
he believes that the amendment also stressed the principle of maximizing the interests of the guardian, and reflected in many parts of the draft. For example, the establishment of the guardian and the guardian to fulfill their duties, the draft requirements should be based on the principle of the most conducive to the guardian of the establishment of the guardian, stressed the need to respect the wishes of the guardian".
"draft has widened the scope of application of the guardianship system in our country, highlighted the function and purpose of guardianship, and emphasized the respect of the will of the guardian, so that the guardianship system of our country is more comprehensive and modern. Li Shigang said.
aspect four: to make a new classification of the legal person is legal fiction
". The general rules of the civil law of our country can be divided into the legal person, the organ legal person, the public institution legal person, the social organization legal person and so on. However, with the rapid development of social economy, social organization form has undergone great changes, foundations, private non enterprise units, social services and other new forms of organization have emerged, the current law has been difficult to fully incorporated, needs to be adjusted by law.
in this regard, the draft will be a new division of the legal person, that is, profit-making legal person and non-profit legal person".
draft clear, in order to obtain profits and distribution to its shareholders or other members of the investor for the purpose of the establishment of a legal person, as a for-profit corporation. A legal person established for the purpose of public interest or other non profits, as a non - profit legal person. Non profit legal person shall not distribute profits to its members or to the establishment of a person.
"this is in accordance with the purpose and function of the establishment of a new classification, and the general principles of civil law is a great progress. "China University of Political Science and Law Professor, China Civil Law Research Institute of civil code drafting leadership team member Li Yongjun said the vice president, China law will, in general, the new classification is more suitable to the national conditions of our country, to cover various types of social organizations, social organizations will help improve the corporate governance structure, to strengthen the guidance and standardization of the such organizations, to promote the innovation of social governance.
Li Yongjun further introduction, horizontal comparison of other countries of the law, the new classification method can also make our country better with the world.
five things: the &hellip team plans to increase the civil subject "organization"
from a research group, an association, a bank branch or branch, a television station; … these social organizations is not a natural person, there is no legal qualification, but to carry out all kinds of social activities in their own name, for it should how to define? According to the draft, they are called "non corporate organizations" ".
draft to a special chapter on the "non legal organization" provisions. Which is clear, non legal organization is not a legal person, but in accordance with the law to engage in their own activities in the name of the organization.
at the same time, the draft also for the "non corporate organizations" were enumerated, including the individual proprietorship, partnership, for-profit or non-profit legal entity established in accordance with the law, such as branches and so on. The concept of "
" non legal person organization, has been in the law of our country, but it is not a, such as other organizations, non legal entities etc.. Li Yongjun said. At present, a large number of unincorporated organizations exist in social life, from the introduction of future civil law perspective, collectively referred to as unincorporated organizations, is more in order to adapt to the needs of social management, is conducive to the organization to carry out civil activities, promote economic and social development, is also connected with other laws. "
Li Yongjun said, between the unincorporated organization between natural and legal persons, can be regarded as" the collection of people ", has the capacity for civil rights and capacity for civil conduct, so the draft from the regulations, such as registration, establishment, representative, domicile, dissolution and so on; at the same time, because of different kinds, unincorporated organization very broad, difficult to draft regulations provisions of meticulous, more feasibility and operability.
six things: "qq COINS", such as gaming equipment or will have
legal protection in the information society, big data is changing our life. For all kinds of data and information, "qq COINS" gaming equipment and other virtual property, it should be how to determine its ownership, and how to protect, it is important and urgent.
draft stipulates that the subject of civil law to enjoy intellectual property rights, and lists the works, patents, trademarks and other 9 kinds of objects, including data information".
"this is a highlight of the general principles of civil law provisions in the draft, the compilation of the civil code of our country with a strong sense of the times, will lead the development direction of the era of big data changes in the civil law in the world, has a special significance. "Renmin University of China Professor, vice president of the Chinese Civil Law School of Yang Lixin high evaluation. The
draft also stipulates that the civil subject enjoys the right of real right in accordance with the law, and specifies the specific right or the network virtual property as the object of the real right, in accordance with the provisions.
experts pointed out that the general principles of civil law legislation must be reflected in the technology development environment change rapidly under the implementation of privacy protection system; must reflect the high-tech era and the era of knowledge economy, the effective protection of intangible property rights.
Yang Lixin also proposed, hoping to be "data information" to further precise provisions for the derived data". He said, the primary data is recorded and stored, after calculation, after polymerization, will form the system, derived data value, such as shopping preference data, credit record data, it should be regarded as the object of intellectual property should be defined, and so the creation of data exclusivity.
seven things: courageous wounded, encourage the rescued compensation of
in recent years, because of courageous but got into disputes that are not uncommon, the Samaritan was damaged, the responsibility is negative? Should the beneficiary be compensated? This often becomes the contradictory point which causes the dispute.
draft provisions: in order to protect the civil rights and interests of others to make their own damage, the right to bear the responsibility of the infringement, the beneficiary can be given appropriate compensation. Without the right of the person or the person who has not been able to undertake the responsibility to escape or be unable to bear the liability for the infringement, the beneficiary shall give due compensation.
experts believe that can be understood from three aspects: first, because of the courageous damage, responsible for the perpetrators, not the perpetrators, who benefits who compensation, legal principles and the necessity of the relevant provisions of the agreement. Academy of Social Sciences researcher, China Chinese civil law research executive vice president of the National People's Congress, Sun Xianzhong believes that this is the case for the actual current our courageous dispute, in the law on the courageous give a right of claim.
secondly, the provision of special emphasis on the right of the beneficiary can be given. Peking University Professor, vice president of the China Civil Law Research Association Yin Tian believes that this is a breakthrough in the relevant laws and regulations in the past. "Can" is not a mandatory obligation, is the rule of self willed, is a moral encouragement. Many courageous suffered personal injury, personal injury is difficult to completely compensate with money, got the benefits of compensation for the courageous advocate at the discretion of the law reflect reward for the courageous moral orientation.
again, "can" also can be understood as, regardless of whether the liability of damage by the Samaritan who has been the infringer to assume, as long as the beneficiary willing to courageous compensation, can't go back to go back.