Abstract
The assertion of equality of rights and abilities in the equality principle of civil law is incompatible with social practice. This kind of realistic contradiction forces the study of the essence of the equality principle of civil law to change a new path from “what is the principle of equality of civil law” to “what is not”. Based on this, the “essence” of the equality principle of civil law is to highlight the “principle” attribute of “equality” by excluding regularity assertion, and guarantee the qualification equality of social subjects in the field of private law by expanding rather than limiting the boundaries of interpretation space. The “essential” argument of the equality principle of civil law makes the interpretation of negative and positive implications logically possible. Civil law is based on the principle of equality. The negative implication of the equality principle derives the principle of freedom. The positive implication gives rise to the principle of honesty and credit and the principle of fairness and justice, which are the guarantees of the principle of freedom. Civil law establishes communication with the times through the dynamic and synchronic nature of the binary meaning of the equality principle，and equalizes the governance of civil law through the negative and positive implications of "one goes up and the other goes down".
Highlights
The assertion of equality of rights and abilities in the equality principle of civil law is incompatible with social practice
Professor Liming Wang maintains that "the principle of equality is mainly embodied in the equality of the rights and abilities of civil subjects, that is, the abstract equality of personality." (Wang, 2008, p. 31) Professor Yi Wang believes that "the principle of equality is mainly embodied in the equality of the civil rights capacities of civil subjects, that is, the abstract personality equality of civil subjects as' human 'in civil law". (Wang, 2013, p. 93) This view is reflected in "Lu’an Innovation Small Loan Co., Ltd. v
"Essence theory" discusses more from the substantive level of the principle of equality in civil law, that is, the question of "what is the principle of equality in civil law." The "implication theory" focuses on the value embodiment of the equality principle of civil law, the question of "what to do"
Summary
It is far from enough to understand the equality principle in civil law by the interpretation of meaning. The theory that the principle of equality in civil law is the capacity of equal rights blindly caters to the definite value of legal rules and neglects and greatly limits the spiritual connotation of the principle of equality in civil law. She does not interfere with the behavior of private subjects to grab wealth without violating the legal provisions and the moral bottom line of "public order and good custom" passively, showing great preference to those who obey the discipline This passivity of the civil law doomed her to be incapable of constitutional equality. The civil law will examine the subjective and objective state of private subjects when they carry out "unequal" acts, and compensate the private subjects who suffer damage and punish the infringers At this time, the positive attribute of the equality principle of civil law shows the "public law".
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