Legislative Techniques of German Civil Code

The superb achievements of the German Civil Code in legislative technology have always been well known. This achievement is as follows: from a big perspective, the whole code system is very reasonable and logical; In the prescribed method, adopt the method of moderate generalization; In terms of terminology, names should be accurate and consistent. Here are three points, and then point out its advantages. The system of the German Civil Code is five parts, and the theoretical problem of the separation of the five parts has been discussed earlier. Now let's talk about logic. The arrangement of these five parts is deductive, that is, starting from the principle of abstract generalization, gradually moving towards concrete. The first is the general principles, which are abstract and principled provisions, and then the more specific legal relations such as debts, property rights, relatives and inheritance. The following chapters are divided into chapters, from chapter to chapter, from general to individual, from abstract to concrete. For example, debt compilation begins with the general principles of debt (the content of debt) and ends with various debt relationships. The same is true for the compilation of real rights, starting with the possession of various real rights and then stipulating various real rights. Kinship includes the basis of kinship, that is, marriage, followed by relatives and guardianship. The same is true of every part. The first article of each section is almost a general description of the legal relationship stipulated in this section, and various specific matters are stipulated below. This method is the most typical in the two chapters of "buying and selling and reciprocity" (section 1 in Chapter 7 of Part II) and "infringement" (section 25 above).

This control method is not only clear-minded, but also avoids duplication. For example, the second chapter of the second part stipulates the establishment of the contract, and when various debt relationships are stipulated, they are not stipulated one by one.

As long as you master the essentials of this system, you can easily find out the provisions of a certain matter in the German Civil Code. For example, it is necessary to check the relationship between the order of buying and selling (section 1 in Chapter VII of Part II), the bilateral contract (section 2 in Chapter II of Part II) and the general terms of the contract and the general terms of the debt, and finally make up the general terms. People who are used to reading the German Civil Code will feel uncomfortable reading the United States Uniform Commercial Code, precisely because the two codes are very different in legislative technology. The German Civil Code stipulates a certain legal relationship or a certain matter in a moderately generalized way, rather than enumerating it. The enumeration method can take Articles 524, 533 and 534 of the French Civil Code as examples, and list the things that the law should stipulate one by one. The advantage of this is that people can understand it at a glance without explanation, but the disadvantage is that it is not easy to list it completely, and it is impossible to foresee new things that may happen in the future, and there are shortcomings such as lengthy articles. There is no such provision in the German Civil Code; The German Civil Code often uses the word "etc". And "other". For example, Article 823 stipulates that the victim of infringement shall specify "or other rights" after enumerating "the life, body, health, freedom and ownership of others". This provision leaves room for future judges to use this article.

In Anglo-American law, there are often very long "definition clauses", and the German Civil Code has also used some ingenious methods in this respect, such as "punishment after death" in Article 83 and "the right to request others to act or not to act (claim)" in Article 194, which are actually definitions. Another example is the stipulation in Article 854 1: "Possession is due to the fact that it has gained a dominant position over things", which is actually a definition. The German Civil Code uses words such as "applicable" (Article 342), "permitted" (Article 27) and "inapplicable" (Article 173) to express the relationship between articles, so as to avoid duplication of articles and try not to drill loopholes. The German Civil Code is famous for its precise concept and rigorous and accurate language. Each concept is expressed by one word, and conversely, each word only expresses one concept, and different words express different concepts. The German Civil Code has done this not only in some special clauses, but also in some ordinary clauses. For example, there are often "gilt als", "im Zweifel" and "except”(es sei denn, dass, etc. ), and they are strictly used and will not be misinterpreted or misunderstood.

The German Civil Code sometimes uses some general and abstract terms to express some uncertain concepts, such as "major cause" (Article 626), "gross negligence" (Article 52 1) and "fair method" (Articles 3 15 and 3 17).

In short, in terms of legislative technology, the German Civil Code is "comparable to any important code." [32] Of course, in terms of legislative technology, the German Civil Code is not without criticism. On the one hand, the strictness of the code makes the law too rigid, and the rigid framework makes the law lose its flexibility; Even into rigidity. On the other hand, the accuracy of the code makes the law very difficult to understand. For these problems, we should contact the legal level and judicial system of Germany. Germany adopts compulsory lawyer doctrine in civil litigation, and its legal education and legal theory are at a high level, which is enough to make the German people pay less attention to the shortcomings of this civil code. Because of this, after the publication of the Swiss Civil Code, these shortcomings are more prominent than those of the Swiss Civil Code. Some people even want to abolish the German Civil Code [33], but in fact, this extreme opinion has not shaken the position of the German Civil Code.

The superiority of the legislative technology of the German Civil Code is completely certain today. It has been nearly a century since the German Civil Code 1900 came into effect. During this period, Germany experienced several extremely profound social shocks, and the economic development greatly changed the society. However, apart from the Law on Relatives, the Civil Code has not been greatly revised. Why can a conservative code be applied for a hundred years and still meet the needs of social development? This is to find the reason from the inherent superiority of this code itself. If the code itself does not have certain advantages to maintain vitality, it cannot last long. Some civil codes existed at the same time as the German civil code, and even when social changes came, the civil codes after it did not exist. Besides many external reasons and conditions, this situation can only be explained by the code itself.

In the past century, Germany has supplemented, revised and developed the Civil Code mainly through two channels to meet the requirements of social development. First, legislation, including amending the Civil Code and enacting separate laws outside the Code. The first is the precedent of the court. The former method is usually used only when the latter method fails. When the situation is possible or the problem just appears, only the latter method is often used. This paper only discusses the latter method.

It is not uncommon to supplement, develop or even amend the Civil Code through precedents. In civil law countries, especially Germany, judges have no power to "make laws", and the German Civil Code does not provide judges with "legislation" when necessary, as in the second paragraph of Article 1 of the Swiss Civil Code. Therefore, in order to do this, German court judges must seek a little "foundation" in the Civil Code. It happened that the German Civil Code laid this foundation for judges. This was prepared by the German Civil Code through legislative techniques.

There are two foundations. One is the general principles of the German Civil Code. This provision leaves room for "development". For example, in Article 823 on tort, the precedent uses "other rights" to protect the right of business operation (Gewerbebetrieh) and the general personality right. Another example is the general contract terms, which are not stipulated in the civil code, but with the development of monopoly enterprises, the court thinks it is necessary to control them. The precedent is based on Article 826 of the Civil Code, which was later changed to Article 242 and then to Article 3 15 [34]. These examples show that the German Civil Code leaves room for judges to formulate such clauses in its general provisions. This is the advantage of legislative technology.

Another basis is the general provisions in the Civil Code, which gives judges more room to gallop than before. Article 242, the principle of good faith, should be mentioned here in particular. There are many cases in Germany that have developed the civil code on the basis of this article. The most famous is to solve the debt dispute caused by the devaluation of the German mark after World War I. In addition, German precedents have also developed some new principles by using this article, such as "the destruction of transaction basis" and "abuse of rights", thus correcting the initial rigidity of individualism in the contract law of civil code. ..... The general provisions of Article 242 have proved to be an important means for contract law to adapt to the changed social ethics. ”[35]

The above two foundations were obviously arranged by the framers of the original civil code. They may not have thought at that time that this arrangement played such a big role in later generations.

It can be seen that for a major code, the legislative spirit is of course important, and the legislative technology is equally important. The latter can sometimes even have a great influence on the former. The German Civil Code illustrates this point.