Methodological consciousness in the systematic study of the Civil Code of the People’s Republic of China

Abstract

The Civil Code of the People’s Republic of China (hereinafter referred to as the Civil Code) was formally implemented on January 1st, 202. The promulgation and implementation of the Civil Code has become a milestone in the process of the rule of law in China, refl ecting the degree and characteristics of the development of the rule of law in China. Among the many features of the Civil Code, the systematical innovation has become the most remarkable highlight, and the systematical research on the Civil Code has become the focus and hot topic in the academic research on Chinese law. In the research process of scholars, genealogy of law, legal system, the rule of law system and the national governance system are four common categories, each of which refl ects the unique characteristics of China’s civil code from different perspectives and refl ects the consciousness of methodology. The category of genealogy of law shows the cultural characteristics of the civil code. Firstly, from the perspective of the genealogy of law containing cultural factors, the Civil Code integrates the socialist core values with Chinese characteristics, which are showed, for example, in the Marriage and Family chapters and the Right of Personality chapters. Secondly, the category of legal system highlights the normative status of the Civil Code. Observed from the organic integrity of legal system, the Civil Code occupies the core and important position in the socialist legal normative system with Chinese characteristics. Thirdly, the category of the rule of law system explains the characteristics of the new era of the Civil Code. The rule of law system is derived from the innovation of China’s rule of law practice, and is one of the general goals of China’s comprehensive rule of law. In this sense, the formulation and implementation of the Civil Code is an important practice of improving the “complete system of legal norms”. Last but not the least, the category of national governance system outlines the governance characteristics of the Civil Code, and the Civil Code fully implements the governance logic of the overall layout of the country, the Five-sphere Integrated Plan, including the promotion in the areas of economy, politics, culture, society and ecology. The application of the four categories has realized four sorts of transformation of the mode of thinking, namely, from the world’s genealogy of law to the legal system of China, from the form system of the Civil Code to the value system of it, from the generality of civil law system to the particularity of Chinese civil code system and from the normative system of the Civil Code to the national governance system. The transformation of the researching logic refl ects the methodological consciousness in the systematic study of the Civil Code. First of all, the systematic study of the Civil Code has transmitted from ontology through epistemology to the methodological consciousness. Ontological research solves the basic problem of “what is” and clarifi es the basic systematic structure of the Civil Code. The study of epistemology solves the problem of “how to know”, which is embodied the search for the method and path of the cognition of the Civil Code. While, the Methodological research is a re-examination of methods and cognitive approaches, with more refl ective elements, and is a study on the existing systematic research on the Civil Code. Secondly, the four systematic transformations mentioned above refl ect the consciousness of Chinese researchers to take on their mission. Since the founding of new China over the past 70 years, the independent discourse system of the academic research of Chinese scholars and the rule of law has been generated. Seeking the indigenization of the construction of the rule of law in China, seeking the integrity of the knowledge system of law and the rule of law system in China, seeking the harmonious relationship between the characteristic theories and the general theories in the process of the production of Chinese legal knowledge, etc., belong to the question of the age. Therefore, the methodology consciousness in the study of the Civil Code shows the Chinese researchers’ consciousness to take on the burden of the coming era. Third, it should be noted that the methodological consciousness also reveals some problems in the current research on the Civil Code: (1) the researchers should avoid being merely the porters of certain concepts and categories when applying the basic categorical methods, and shall be fully understand each category in the specifi c areas and the latest achievements of related research, avoiding taking the words simply literally; (2) the related various systems and categories should be interpreted basing on the spirit of the age and the characteristics of the rule of law in China, and we should pay attention to the differences and organic links between them; (3) the four categories mostly often be applied by the researchers from the internal system of the civil code, lacking of the comprehensively combination of the internal and external perspectives.