The draft European Civil Code and Civil Law of China Reference

Keywords: Draft European Civil Code; of Civil Law; reference

Summary: European economic integration led to the need to achieve in the field of private Law integration of trading rules. To this end, the European Civil Code and the current European Union Institute for Private Law Research Institute drafted a "European Civil Code draft (proposed common framework draft)." The draft or whether it is in the structure are quite content in specific characteristics. Our approach should be the Code Minshanggeyi, Civil Law and common Law methods of integration in many areas to learn from their experience.



First, the draft European Civil Code to develop the background

Since the establishment of

from the time of the EC, the European Union and the Member States will strive for the free flow of the internal market, to promote the "single market" Construction and tireless efforts. January 1958 entry into force of the "Rome Convention" (Treaty of Rome) that was substantial unity of the European Union, signed in 1991 "Maastricht Treaty" (Treaty of Maastricht), 1997, signed the "Treaty of Amsterdam "(Treaty of Amster-dam), 2001 years" Nice Treaty "(Treaty of Nice) and the 2009 signing of the" Lisbon Treaty "(Treaty of Lisbon) the signature is to further promote the unity of the European Union. {1} However, the private market as the adjustment of goods, persons, services, capital of the free flow of commercial transactions and regulating the freedom of the law, and the "single market" within the building there is a natural link. Can be said that the improvement of private law can reduce transaction barriers, thus promoting the Development of a market economy. Since the eighties has been the increasing awareness of the European Union to build a truly free flow within the "single market", in addition to non-uniform currency, the diversity of private law would hinder the "internal market" building process. Meanwhile, the modern private law of "vulnerable groups" protected by deepening the EU also have to consider intervention in the field of private law. {1} So, the EU gradually through the "Regulations" and "instruction" and other forms of diversity in private law to adjust. As regulations have full legal effect of binding and universal, and its promulgation is considerably limited, and because the differences between members of the larger private law, therefore, can only be achieved if a minimum of coordination, the EU directives in the form of general use; member states must be within the prescribed period Directive into national law within. This not only allows members to maintain certain common law, but also to retain some of the differences, is to "minimum coordination (minimum harmonization)". {2} So far, the EU directive issued in the private law of about twenty, to a certain extent, promoted the integration of private law among member countries.

However, in order to "command" form-based Unification of Private Law has its own defects, and can not meet the needs of the EU integration of private law. First, the directive must be applied in all member states choose to make the countries in the implementation of the "instruction" when not really unified, to a certain extent, can even say that by the Member States to choose the way that national legislation is more diversified ; Second, the instructions involved in the field of private law is limited, and very dispersed, together with almost all of the instructions relate only to the consumer protection laws, it is difficult to truly reflect the value and concept of private law. And most crucially, because of the lack of common EU legal background, command of the concepts and terminology are not consistent, coordinated, and these inconsistencies and uncoordinated, leading to the Member States of the "instructions" to implement the diversity of standards, a serious impediment to The real unity of private law. {3}
Therefore, in order to promote within the EU capital, people, free movement of goods and services needed to achieve in the broader field of Unification of Private Law and to take a more unified form of coordination. {3} To this end the European Parliament (European Parliament) in May 1989 first proposed building a "European Civil Code," the idea of ​​{4}, but the idea was not widely in response to scholars of jurisprudence more questioning whether the EU has the power to enact the Civil Code. However, in the "single market" driven by the requirements of economic Development, the European Union in May 1994 again raised the idea of ​​building a civil code {5}. As the Development of the Civil Code
the most important step is to develop a complete contract law. To this end, in Denmark, led by Professor Rand General Committee on European Contract Law (Land Commission) efforts, after nearly 20 years of efforts, finally drafted in 2002, "General Principles of European Contract Law" (Principles of European Contract Law). {6} However, the general rule relates only to the general principles of contract law or general rules section, for each specific contract, such as the sale, service contracts and other areas of traditional civil code, such as ownership, security and other systems not involved. Therefore, the General on the promotion of the EU "single market" role has some limitations.

To speed up the unity of European Private Law, 2003, the European Commission to develop a "more coordinated action plan of European Contract Law" (Action Plan for a more coherent European contract law). In the "Action Plan", the European Union first proposed to build a "common frame of reference" (Common Frame of Reference) of the plan, in order to establish a common set of European contract law rules and terminology. In 2004, the Committee also adopted the "European contract law and amendments to existing law: the next step of the way" (European Contract Law and revision of the acquis: the way forward), which reaffirmed the "Action Plan" proposed in the ideas and plans, and expressly be completed in 2009, "common reference framework" of the preparations.

Drafting a response to the EU's call for a unified European civil code, Professor, University of Osnabrueck, Germany von Baer (Christian von Bar) on the basis of the foregoing Land Commission was established in 1998, "European Civil Code Code of the Institute "(Study Group on a European Civ-il Code). The Institute is responsible for various specific civil law system, from the drafting of the working groups. Such as the sale, service and long-term contract working group (Dutch Team, specifically including Utrecht, Tilburg and Amsterdam, etc. Group) responsible for drafting the contract for the sale, service contracts, commercial agent, franchising and distribution [1] and the commissioning of contracts; and extra-contractual liability Gift of the working Group (Osnabruck Team) is responsible for drafting the law of tort and contract of gift; real estate lease contract of the working Group (Bergen Team) is responsible for drafting the lease contract; estate sale of the working Group (Salzburg Team) is responsible for the drafting of real estate transfer law; security working group (Hamburg Team) responsible for the drafters of the security and property security; Trust working Group (Edinburgh Team) is responsible for the drafting of trust law. {7} 9
Subsequently, the European Civil Code, the existing private law with the European Institute for Research (European Research Group on Existing EC PrivateLaw, referred to as the Acquis Group) [2] In early 2006, jointly set up editing and revision of the working Group (Compilation and Redaction Team), responsible for the Institute and the European Civil Code, the drafting of the European Institute of the existing private law to compile the results, sorting, to form a European Civil Code samples. They finally completed in March 2009 the "European civil law principles, definitions and model provisions (proposed common framework for the draft)" (Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), hereinafter referred to as "Europe The draft Civil Code ") {8}
draft European Civil Code goes far beyond the EU build a unified set of rules of private law terms and the requirements of the contract, but will tort, unjust enrichment, property ownership and transfer and other related content All drafted. The current draft of the EU to fully absorb the results of unification of private law, inherited the "General Principles of European Contract Law," the main content. On this basis, the economic Development of contemporary European repeat some of the most universally applicable EU member states the new rules into the status of a constitutional "human rights protection" and other concepts, highlights the Humanism (see below above).

The draft is the world's latest draft Civil Code. Its formulation, Jina the civil law and common law countries such as the representatives of Germany, the Netherlands, Britain and other state laws elite. The Development of legal concepts of the world, the legal system and legal education and so has a significant impact. As China's property law, tort liability law passed, the Civil Code not be long before the final formulation. Therefore, the draft of the European Civil Code must be conducive to strengthening the understanding of the European Civil Code and Civil Code provide a reference for China to develop and learn.

Second, the draft European Civil Code the main content

(A) of the draft European Civil Code frame
to some extent, learned of the Structure of the Dutch Civil Code [3], the entire content is divided into ten series. PArt One is general principles, pArt II of the contract and other legal acts. German Civil Code is equivalent to the contents of both the general pArt of the Dutch Civil Code or the Act III, the general pArt of the property. III to VII are the equivalent of the German Civil Code Act of debt, or the Dutch Civil Code section VI, VII, General Obligation Law and the specific contract. Among them, III and the corresponding right to regulate the debts belong to the contents of General Obligation Law; IV, then, for the specific rights and obligations of the contract and make the corresponding provisions; V-free due to management system specifications; VI provides causing damage to others due to non-contractual obligations arising, that the traditional tort law on the Civil Code, Title VII when the profit is not made detailed provisions. VIII to X. belongs to the German Civil Code in the context of property law. Specifically, PArt VIII provides for the acquisition and loss of ownership of the goods, the ninth series of security interests on movable property, X. is trust. Finally, an Annex, the main concepts on the relevant provisions of the term. It is noteworthy that, despite the preparation of the draft Civil Code draws on the experience of the Dutch Civil Code, the structure, but in the "property", "claim" on the order, but it is the model adopted by the German Civil Code, the law of obligations in before the Property Law in the post. This is so because in the modern era, as the relationship between the dynamic performance of the property than the performance of debt is still an important property of property relations. Debt is the goal, and material means. As Radbruch said, in a static society is the purpose of property, debt is a means, and in capitalist economic life, claims the purpose of life itself, to become law, it made a priority. {9}
(b) the specific content of
1. General Part of the first series is entitled
General (General Provisions), the use of ten specific provisions provided for the scope of interpretation and development, integrity and fair dealing, reasonableness, consumers and businesses, written and similar expressions, signature and similar expressions, by-laws as defined in the notice, the time calculation problem. According to the European Civil Code, the interpretation of the drafters of the draft, the first compiled for the following nine series provides a brief general guide. {8} It reflects on the universality of the civil law in the pursuit of the Civil Code. However, from this point of view the provisions of the General, which was different from the meaning of the German Civil Code, "General", but rather more like France, Spain and other countries in the Civil Code, "order problem." {10}
under Part II of the contract and other legal acts. Its divided into nine chapters and specific, the first chapters: general provisions; Chapter II: anti-discrimination; Chapter III: Marketing and the first contractual obligations; Chapter IV: set; Chapter Five: the right of withdrawal; VI: Agent; Chapter VII: invalid reasons; Chapter VIII: Interpretation; Chapter IX: The contract content and effect. This is the traditional core of the German Civil Code Zonglun in part. However, it should be noted that the German Civil Code has not adopted the legal acts related to the term, but with a "contract with the other 'legal' (juristic act)" of the title. The title indicates the attempt to avoid the use of the concept of legal acts in Germany in order to avoid the concept of a unique system of domestic unwarranted in other countries, so as not to be no legal system in other EU countries accepted recognition. {11} 2-3 is well known that the most important contract is a legal type. Therefore, in the Code, the drafters have spent re-pen to regulate contract, its agents, validity, interpretation and contents of the contract and effects. {7}
in this series, the first worth mentioning that its anti-discrimination provisions of Chapter II system. So far, the EU has already formulated a series of anti-discrimination directives, such as the Racial Equality Directive (2004/43 / EC), the Employment Equality Directive (2000/78/EC), etc., under which EU countries will convert the contents of these instructions into a specific domestic legal system. Such as the German states that the "National Equal Treatment Act" (Allgemeines Gleichbe-handlungsgesetz), the Netherlands provides for "Equal Treatment Act" (Algemene wet gelijke behandeling), the United Kingdom provides for "Equality Act" (Equality Act). {12} However, the draft European Civil Code has provisions directly to the content of these instructions in the Civil Code. If Ⅱ .- 2:101 states: "The subject matter is available to use or provide public goods, other assets or services contract or other legal acts, any person not because of gender, race and discrimination rights. "Ⅲ .- 1:105 is further terms of the scope of protection extended to the Debt Law, the" anti-discrimination principles of Chapter II of Part Two as required by appropriate amendments to the following conditions apply: (a) use of or provide the public can access the goods, other assets or services of debts; (b) exercise of the rights to perform the obligation or debt relief do not fulfill the right of defense, and (c) exercise the right to discharge the debt. "VI Code Section Ⅵ. -2:203 Article explicitly provides for the personality, self. By the basic rights and privacy protection. The anti-discrimination principles into the Civil Code, the concept of "private law in the Constitution," the spirit and trend. Thus the distinction between private law and public law increasingly blurred, the Civil Code is no longer a purely private, but public-private hybrid method.

Secondly, the chapter prepared to withdraw the right system is also rather special. The specific provisions of the withdrawal of the scope and mandatory nature of the right to withdraw the right to exercise the withdrawal period, the right to adequate information to withdraw, withdrawal effects, related to the joint to withdraw the same and in particular Article 6 rights. The right to withdraw first appeared in the Consumer Protection Act, the purpose is to give in a weak position to provide special protection to consumers, allowing it to take effect in the contract and within a certain period of time after the unilateral termination of the contract system. However, the European Civil Code will be expanding its scope of application, no longer limited to consumer contracts, even among the commercial contract, but also apply.

2. Claims Act III was part of
debt and the corresponding rights, specifically including Chapter I: General provisions; Chapter II: performance; Chapter III: non-performance of relief; Chapter IV: The majority of debtors and creditors; Chapter V: parties change; VI: Cancellation and merger; Chapter VII: aging and so on. Provided from the contents of the Code of view, the equivalent to the traditional law of obligations in the General Civil Code section, the most typical manifestation is the "debt" is defined. According Ⅲ. -1:102: (1) provides that the legal relationship debt is a creditor of the debtor shall perform the obligations. It can be seen, the code in the "debt" includes not only contractual obligation, but also including non-contractual obligation.

IV contract and its rights and obligations for specific, concrete and provides a contract for the sale (the first sub-series), personal property leases (the second sub-series), the service contract (the third sub-series), commissioned by the contract (the fourth sub- Code), commercial agent, franchising and distribution (the fifth sub-series), the loan contract (the sixth sub-series), human security (the seventh sub-series) and the grant contract (the eighth sub-series) and other eight sub-series.

In these types of provisions on which the contract is worth mentioning that the drafting of the first large contract for the sale for reference to the "United Nations Convention on the International Sale of Goods" and the consumption of buy and sell orders. It is in the structure and substance absorbs the advantages of both and integrate effectively. In the legislative structure, but also quite distinctive, and it will contract for the sale into the sale and consumption of two types of commercial transactions and consumer goods with a special chapter provides security, which will trade in the commercial freedom of contract and consumer to consumer transactions in the special protection is good land as one solution. {13] 154 Second, the service contract model has a distinctive feature of legislation. Taken out of its legislative structure, the first two chapters are small general principles, provides service contracts for specific types of general rules. Then they were provided with six chapters construction, contract, storage, design, information and medical services contract specific rules. The score structure, specific rules will not only help to reduce duplication of provision to enable service contract base specification more concise, so as to facilitate public understanding of the law, the judge attorneys; but also to civil law (contract law) itself in the new social economic situation to make the necessary self-adjustment before, to avoid the emerging economic life of service contracts continue to change the type of civil law (contract law), which can maintain the openness and stability of the code. Moreover, the formal development in the civil service contract, not only in the economic life of service playing an increasingly important role in the response, it is different from the traditional type of contract of service contracts is recognized, so as to legislation and the World Civil Code Object of development of the theory has made its own contribution. Also adopted the Code on the broad concept of service contracts, the economic concepts not only for the production by the construction contract entered into, and the medical social services are also included in the room. In addition, the commission provided for IV contract, the only adjustment between principal and agent internal relations, and adjustment of external agents and third party relations agency system separate legislation. Of course, due to various reasons, the Civil Code will be entrusted to contract independent of the service contract, in the legislative framework point of view, belongs to the Legislative defects {7} 39-40. Finally worth mentioning is the one guarantee contract. The provisions of a chapter in the general rules, but also provided with two chapters are independent people who guarantees and non-independent security. This will be a separate independent person with a guarantee of non-unified specification, which is quite unique. In addition, people's security, its independence in the last chapter with the provisions of the consumer's guarantee of special rules, reflecting the spirit of consumer protection.

Fifth to VII details the ink is not at all due to management (12), tort (58) and unjust enrichment (17) and so on. The three books rich in content, the Civil Code for the EU countries can not match. If the rather detailed provisions on tort only has the German Civil Code section 31, only 11 provisions of unjust enrichment.

3. Part VIII Property
ownership of the goods provides for the acquisition and loss, specifically including Chapter I: General provisions; Chapter II: Based on the transfer of the rights or powers of the transfer of ownership; Chapter: bona fide acquisition of ownership; fourth Chapter: Based on the continued possession of the title acquired in good faith; Chapter: production, with a combined and mixed; Chapter VI: Ownership protection and possession of protection; Chapter VII: return of the goods. Part IX of the security interest on movable property, including Chapter I: General provisions; Chapter II: Establishment and warranty; Chapter III: the third person effect; Chapter IV: Priority; Chapter V: pre-determined the arbitrary rule; VI: lifting; Chapter VII: non-compliance and enforcement. X. is trust. The contents of the code derived from the common law, which specifically includes the basic requirements, trust, trust funds, trust terms and invalid, the decision of the Trustee and power, the trustee and the trust obligations and rights of support institutions, non-performance of relief, entrusted secondary institutions or to change the trust, trust to lift, change and transfer of rights and benefits and the relationship between the third person ten chapters.

The first part of a feature is its only relates to the field of movable property law system, without involving real estate. Because it is real property system is the inherent law of the Member States, has a national character, and with a country's land registration system, public law restrictions on the use and enforcement of law are closely linked, unified rather difficult.

Secondly, part of the Property Code also provides for the final trust system. {14} The Trust Law is a derived from the common law legal system. Its formation in the Middle Ages and evolved over centuries of evolution and formation. However, with the strengthening of economic integration in the EU, increasingly fierce economic competition within the EU. Given some of the traditional European civil law countries the legal system does not exist in the trust, based on economic costs, some enterprises have chosen to consider the basis for the British Trust Law Trust management and security trusts. The resulting competition is intensifying within the EU law. To prevent domestic companies choose to use domestic law to avoid his country's legal system, the drafting of the European continent will have to develop the appropriate legal system, such as France have tried to draft in 1992 to develop a new trust system, Italy and the Netherlands have ratified the 1985 The "law and its recognition of the Hague Convention on the Trust" (referred to as "the Hague Trust Convention"). However, due to the civil law tradition Civil Code can not be accommodated outside the framework of the Trust Law, the common law meaning of trust in the civil law system has not been effectively integrated into the country. {15] To this end, the drafters of the draft European Civil Code that will need to trust in the civil code and civil law with the property rights system into account, the provisions of the Trust for the limited rights related to a property, which Trust system to achieve real root in continental Europe. [4]

Three main features of the draft European Civil Code

(A) of the Legislative Technology
draft of the European Civil Code seeks to apply to EU member states, in order to avoid some of the terminology in different domestic legal systems have different understanding of the drafters of the Civil Code adopted the draft common law legal definition in terms of a typical first compiled in the draft reflected Ⅰ. -1:108 And the corresponding Annexes. Made uniform by the provisions of legal terminology, interpretation, on the one hand contribute to the law, spirit of the law applicable to an accurate understanding of the scope of the other, contribute to the legal system, legal tradition different EU member states to create a for their understanding, acceptance speech in French law, and to avoid differences in understanding the inconsistent application of legal rules created to enhance legal certainty and stability. {7} 53 In fact, this is also the latest trends in international legislation, such as the new "German Anti-Unfair Competition Law," "Uniform Customs and Practice for Documentary Credits," Publication No. 600 and so developed a specific legal definition of terms.

In addition, the draft European Civil Code is still the first Ⅰ. -1:102 Provides a set of principles to explain the provisions of the draft. Which is divided into five: (1) provides that the interpretation of the Civil Code provisions and development of autonomy, and should be interpreted consistent with the objectives and principles of the Civil Code; paragraph (2) provides that the interpretation of the Civil Code provisions should be consistent protection of human rights and fundamental freedoms of law and constitutional law documents; (3) provides that the Civil Code provisions interpreted in favor of the promotion for the unification of the principles of integrity and fairness and legal certainty; (4) provides that , Civil Code, the scope of application but are not clearly stipulated in the problem, as far as possible under the Civil Code is based on the basic principles to resolve; the last paragraph of the General Conditions and Special Conditions to the order made for that, that is, special provisions better than the general terms and conditions apply.

Reason why the draft European Civil Code will require a set of principles of interpretation of the draft, mainly because, although the draft Civil Code in their own unique language, provides specialized legal terminology is different from EU member countries in a domestic Civil law system of rules, but it does not itself establish a monitoring mechanism to implement the Civil Code to ensure the correct application and interpretation of the Civil Code. Once the entry into force of the European Civil Code, due to the direct applicability of the Civil Code, the Member States court or arbitration body the European Civil Code can be applied directly to solve civil disputes in the EU member countries, which inevitably makes the interpretation of the Convention are subject to different legal traditions and legal the impact of interpretation, thus affecting the people a correct understanding of the Civil Code provisions. Moreover, the European Civil Code is applicable to judges and arbitrators to achieve, they are familiar with their national law and can not help but rely on self-consciousness is rooted in the concept of law, with the domestic law to interpret the European Civil Code colored glasses, but for different national laws to explain the concept of the European Civil Code, the European Civil Code will certainly become fragmented.

(B) of the structure
1. Total structure
whether European Civil Code provisions on general principles, among scholars from various countries in the EU is very controversial. This is mainly related to the civil law tradition and the EU countries. Such as the German Civil Code contains a code for the content of each of the other major sub-General (although scholars criticize the General, but in essence is a property law General), the French Civil Code, but did not, only one sequence problem. Professor German 德罗布尼希 therefore should establish general principles, the reasons are as follows: General provisions conducive to guide the sub-provisions to ensure the harmony of the Civil Code; General terms helps to reduce the sub-terms, thus speeding up the pace of legislation; General provisions have Civil Code itself is conducive to social and economic situation in the new front to make the necessary self-adjustment; General provisions help to promote the teaching and understanding of the law to improve law enforcement efficiency. Professor Talun in France opposed. {16}
the end, the draft European Civil Code from the structure, the combination of two modes of German-French Civil Code, that General and order issue model. As mentioned above, the EU draft Civil Code with the statement is the first General (General Provisions), while Part II provides a contract and other legal acts. However, the contents of the provisions of Part I of view, it is essentially a Latin family law issues in the order adopted by it. Part II, but rather part of the contract and the legal acts, it is fully prepared for subsequent content (whether it is part of the debt law or part of property law), from the meaning of General view, is the real meaning of the "General." Therefore, said General of the German Civil Code draft European law and general principles of French law and order issue model.

2. Property Code
contents of the draft civil code from the European point of view, it belongs to every inch of the property code. Capacity on the rights of natural persons, wills and inheritance, family law, etc. were explicitly excluded from the scope of the adjustment (Ⅰ .- 1:101). This is because the background of the Civil Code is that the European Union within the European Union economy, and the traditional part of the Civil Code of total property law and economic relations, economic interests are closely linked and economic needs reflected in the unity of the Civil Code, the inevitable is demand for unification of property law. On the other hand also because of family law, inheritance and other personal content areas of private law to a greater extent by the moral values ​​of a country, national habits, cultural traditions and other factors, with little influence by economic interests, or the impact is not less direct.

As a foreign law on the degree of difficulty by following the survey shows, it is easier to accept the contract, tort, corporate, labor relations and other aspects of the new legal rules, but it is difficult to accept the marriage, inheritance, and not Adult Guardianship and so changes the rule of law. In addition to the impact of social behavior, there are religious and moral factors. Of course, over time, the EU member states and social behavior patterns and cultural integration, gradually the personal relationship into 0 "European Civil Code" is also possible. {16}
(c) of the content features
1.

Humanism Humanism is a philosophy based on reason and kindness theory and world view, its ideological basis for rational reasoning, to love mercy as the basic values ​​of human dignity, freedom, and tolerance between people get along without violence are all of its proper meaning. [5] Humanism is the basis for European countries drafted the Civil Code. {17} 237 and the draft European Civil Code also embodies the spirit of humanism, humanism is a fully-fledged civil code. The most obvious example is the protection of their human rights.

Draft European Civil Code either in law or principle, are highlighted on the specific content of "human rights" the attention and protection. If the legal principle, Ⅰ. -1:102 (Interpretation and Development) Regulations, the Code should be applied according to the protection of human rights and fundamental freedoms, legal (instruments) and any applicable constitution be explained. As to the specific content, the draft Civil Code, respectively, according to the spirit of the foregoing principles in the draft Civil Code Part II (Chapter II, anti-discrimination), III (Ⅲ. -1: 105) and VI (Ⅵ .- 2 : 203) in the anti-discrimination provisions of the detailed and specific content. {12}
In fact, since the beginning of the 20th century, 50's, they set off in the field of European private law concept of human rights protection. Such as the famous German Burgschaft 1993 case (BVerfG 19 October 1993) is an example. In that case, one party is 21 years old, not highly educated, work in the fishing grounds, a low-income girls, the case for the girl's father, the other banks to provide loans, but require a personal guarantee from the girls. The girl signed a personal guarantee in the document, the bank officer asked her to the bank within the provisions of a contract as a bank record information and inform them of the obligations under the contract will not be greatly changed. Girls agreed and signed the contract. Soon, her father, business failure, the bank then loans and interest to the girls claim a total of 8 million euros in debt. The Federal Constitutional Court from the perspective of basic human rights, ruling that the contract is invalid on the grounds that the girls need to repay the debt if the decision would, according to her income, she lived the rest will be spent in the settlement of the debt. In view of the law on the disadvantaged groups and "human rights protection" concept, the view that the girl is in the structural inequalities (structural inequality) of the consultations of the guarantee contract was signed, and the signing of the contract will lead to weak to bear a heavy legal burden. Therefore, the Court, "public order and morals" and "good faith" the general principle that the contract is invalid. {12} Moreover, in recent years in the Netherlands, the UK and the EU court's decision appeared in a similar verdict. December 2000, "EU Human Rights Charter" (Charter of Fundamental Rights of the EuropeanUnion) is based on the signing of the form of the statute confirms the field of private law should implement the concept of human rights protection. Although the draft European Civil Code, but is above the Constitution and human rights in the judicial practice of States into a cultural experience in private law only, but it embodies the spirit of the civil law and private law, constitutional human trend.

2. Based concept of civil society based
is the basic concept of civil law, the basic purpose, the basic function, or basic tasks. Modern European Civil Code reflects a rights-based philosophy. Rights-based concept that the basic task is to protect civil rights, the protection of individual rights is the highest law of the mission. The modern civil law embodied in the above three principles, namely: freedom of contract, ownership of the absolute with their responsibilities. The establishment of the standard of human civilization has made a significant contribution, it is because rights-based, it promotes well-developed market economy countries of Europe. However, since the mid-19th century, and especially since the 21st century, social conflicts, between employers and employees, strained relations between producers and consumers, the growing gap between rich and poor. Therefore also one of the ideological change of civil law, respect for individual liberty by the evolution of the traditional civil law for more attention to social and public welfare, is the standard concept of civil society. {18}
draft European Civil Code also embodies the concept of social standard. It is not only reflected in the principle of freedom of contract revisions and restrictions, but also in the scope of breach of contract and tort liability which. As regards the former, such as the European Civil Code clearly stipulated in the first draft of the principle of good faith and fair dealing (Ⅰ .- 1:103), and the principle of rationality (Ⅰ .- 1:104), the provisions in Part II, Chapter V anti-discrimination principle, the third provision, section Ⅲ .- 1:104 collaboration principles of debt discharge. For the latter, such as the European Civil Code clause Ⅲ .- 3:701 (3) and Article Ⅵ .- 2:101 (4) (b) established on non-economic damages, which greatly expanded the EU civil code the scope of damages. According to the two provisions, both non-economic loss the pain, anguish, but also the general quality of life damage. And section Ⅵ. -6:204 Will further expand the scope of compensation, the provisions of the biological damage, health damage and economic loss is independent of the non-economic damages. This provision is of Italian or dan-no biologico danno alla salute system of reference. In addition, Ⅵ .- 2:202 provides for bereavement damages (Bereavementdamages). Under which family members and other close relatives of the victim officers to death or injury to the victim caused by the offender shall be required of non-economic loss compensation. The Ⅵ .- 2:209 provides for the Government to restore environmental resources, such as air, water, soil and fauna of the costs incurred may require the offender to be compensated. The draft European Civil Code which embodies the concept of social standard. {7}
3. Minshanggeyi to business-based civil
are all in the EU member countries, both developed in the field of private law their own codes. However, some countries have adopted the doctrine of civil and commercial division, such as Germany and France. However, some countries have taken the Minshanggeyi, such as Switzerland, the Netherlands, Italy. Can be said that the latest development of the Civil Code, are basically taken Minshangheyi mode. {19}
draft European Civil Code from the content point of view, should be Minshangheyi doubt. The draft Civil Code general provisions in Part I defines the meaning of "enterprise (business)", the meaning of "consumer" (Ⅰ .- 1:105). The so-called consumers, is the basic purpose of the implementation of acts and their commercial, business or occupation not related to any natural person. Behavior of the corporate purpose is to implement its commercial, business or occupation of any natural or legal person, whether a public or private, and regardless of whether they intended to profit from the act. From the above definition of enterprises and consumers can infer that at least the contents of the draft European Civil Code will apply to both businesses and consumers, which reflects the Minshangheyi spirit. As to whether the legislation is based on business (or business subject) as the basic adjustment of the object, or to the consumer (or civil entities) as the basic adjustment of the object from the code is hard to see. But then the code is clear that the enterprise or business subject is essential to adjust for the object, the most obvious is the IV (specific contract). IV below to focus on analysis.

First points in the IV series, the drafters were defined in the "contract of sale" (Ⅳ. A.-1: 202) and "consumer contract of sale" (Ⅳ. A.-1: 204). Followed by a chapter (Chapter VI) of eight specifications of consumer goods, specifically the provisions of the definition of security, guarantees of binding, security instruments, warranty, guarantee of a specific part, the guarantor of the exclusion or limitation of liability, burden of proof and other issues extended warranty (from Ⅳ. A.-6: 101 to Ⅳ. A.-6: 108) {14} 153-154. Code of goods in the second sub-lease contract, Ⅳ. B. -1:102 Provides for what is "consumer goods rental contract", and were provided with three terms of "consumer lease agreement to exclude the right to limit" (Ⅳ. B.-1: 103), "Consumer Leasing Relief of the contract limited to exclude "(Ⅳ. B.-1: 104) and" consumer goods in the lease contract is not properly installed "(Ⅳ. B.-3: 105) and other issues. Provisions of the fifth sub-series is the "Commercial Agency, Franchise and Distribution", which are purely commercial contracts areas. The provisions of sub-series is the sixth loan contract. Under section Ⅳ. F. -1:101 (A), provides that the sub-code does not apply to business to consumer loan contracts. It can be seen, the part of the specification is purely commercial loans. The seventh series is one of the security requirements. In the sub-code, the drafters of the independent person in the specification of security and guarantees of non-independent person, the special use of a special chapter (Chapter IV) seven terms of specification of the "consumer's guarantee of a special rule" problem.

So we can see that the draft Civil Code to adjust the whole of Europe, including businesses and consumers the subject, and the rules are the main commercial norms, civil norms, supplemented by trade, mainly because the most active are the modern commercial transactions. In the commercial code of conduct comprehensive, the only difference between consumer behavior to be special provisions, which can achieve cost savings legislation.

4. Civil law and common law systems integration
purpose of drafting the European Civil Code to the EU market of people, capital, services, free flow of goods to provide a unified private law rules of law. However, private law between EU member states are very different traditions, they belong to different legal systems, such as Germany, France, the Netherlands, Switzerland belongs to civil law, the United Kingdom, Ireland belong to common law. Legal traditions in different countries so to develop a uniform application of the rules, for purposes of the drafters is a huge challenge.

Contents of the draft civil code from the European point of view, the general civil law countries adopted the general rules and structure. First, the systematic, logical drafting of the code itself would mean civil law concept of the winner. Second, the legal concept, its also mainly the adoption of the concept of civil law. Such as legal acts, debts, property, security interests, limited property rights and so on. Finally, in terms of the draft specific rules, which are mainly adopted the provisions of civil law. Such as the development of the contract, the draft provision does not require "consideration" of the common law concept of specific (Ⅱ .- 4: 101). Another example is the commitment to take effect on the draft Part II Ⅱ. -4:205 Was the arrival of the provisions of the civil law doctrine, which has not adopted the common law doctrine of posting, and so on.

However, for the law of EU member states to respect and protect diversity, the draft European Civil Code, while mainly civil law rules, to a large extent common law countries also adopted legislative rules. Such as the way of contract formation, civil law countries such as Germany, Switzerland and the Netherlands Civil Code, have emphasized only by way of offer and acceptance entered into. {20} However, the draft European Civil Code, common law draws on the spirit of the contract entered into, Ⅱ. -4:211 Clear that conclusion of a contract can take the other way. In another example, the draft European Civil Code Ⅲ. -3:504 Be explicitly adopted the common law of anticipatory breach. Finally, the most typical is that, at the tenth series of draft European Civil Code will be unique to common law came into the trust system to the property and civil law system to achieve an effective integration.

Course, to make the old British common law countries such as acceptable to the Civil Code, the drafters also some of the civil law concept, system and so were defined or minor modifications. For example, in the United Kingdom, in addition to the 1979 "Sale of Goods Law" referred to "good faith" term, its Contract law does not determine the integrity of the basic principles of contract law. Concept based on British law, mainly the concept was too vague, the parties need to explore the subjective psychology, this will affect the terms of the contract certainty. Britain to become a plus or even worry about integrity of the legal sort of understanding in his possession, and therefore refused to join the United Nations "Convention on International Sale of Goods." {21] 4 in order to avoid the above phenomenon, the draft Civil Code recognized the principle of good faith, but also the specific scope of application of the principles, requirements and standards to do a more detailed rules (Ⅰ .- 1:103, Ⅲ .- 1:103), the United Kingdom to accept the European Civil Code so as to clear the unnecessary obstacles. In another example, the offer is revocable, but also integration of the civil law and common law rules, Ⅱ. -4:202 Clear that, in principle, offer may be revoked, but exceptional circumstances, the offer is irrevocable. In addition, the drafters also all of the concepts, terms were defined. So that the system lacks many common law concepts easy to get a deeper understanding of specific cases in order to reduce implementation barriers. {7} 53
5. Modern civil law consumer protection
model is based on abstract personality, personality basis of equality, they adjust the body, only an abstract "people", and whether they are producers or the consumers, large enterprises or the small and medium enterprises , Let them all equal in law. Eiichi Hoshino, as Japanese scholars have said, "the characteristics of modern private law lies first and foremost recognize the equality of all people have full legal personality." {22} However, since the 20th century, with the development of production, social and economic life has been a fundamental change. Between producers and consumers of the serious polarization, consumers become the weak in society. Between producers and consumers is no longer a relationship of equality, but developed a substantial relationship between dominant and dominated. Traditional Civil abstract personality, personality concept of equality is fundamentally shaken, which led to the Civil Code to protect consumers outside the isolated special method [23]. However, this legislative model is still in the civil law concept of formal equality to maintain the fundamental thought of personality as a precondition. The draft European Civil Code Civil Code in reference {23} The Netherlands, Germany, 2002, the law of obligations based on the experience of modernization, a change in traditional concepts and models, the concept of directly into the Civil Code of consumers, and consumers throughout the implementation special protection.

The specific embodiment, in addition to the aforementioned draft European Civil Code Part IV than in other parts, such as, part Ⅰ. -1:109 The notification provisions of Article; Part II Ⅱ. Without consultation with the relevant section -1:110 under the terms of the individual, Ⅱ. -3:102 Article Marketing to consumers about the special corporate obligations, Ⅱ. -3:103 Be particularly disadvantaged on with the consumer signing the contract the obligation of providing information, 1.-3: from 104 to communicate real-time information about the obligation of, Ⅱ. -3:109 Article about breaches of obligations of the relief measures of information provision, Ⅱ. -3:201 Be corrected errors on input requirements, Ⅱ. -3:202 Receive a confirmation of the relevant provisions of Article, Ⅱ. -3:401 Not respond to article on non-debt provisions, Ⅱ. -5:105 Effect of the withdrawal provisions of Article, Ⅱ. - 5:201 enterprise business is not to negotiate on the terms of the contract and Ⅱ. -5:202 Article about time-sharing provisions of the contract, Ⅱ. -9:102 Be declared on certain prior contract as the contract provisions, Ⅱ. -9:403 Be signed between the relevant enterprises and consumers in the contract "unfair" the meaning of the provisions, Ⅱ. -9:410 Businesses and consumers about the contract signed between the presumption of "unfair" provisions, etc.; III Ⅲ. -3:108 The enterprise is unable to perform the consumer long-distance communication by signing the contract requirements, etc.; IX Ⅸ. -2:107 Security rights granted to the consumer section of the regulations, Ⅸ. - 7:107 enforcement notice to consumers about the requirements and so on. The reason why the draft European Civil Code
directly to the consumer protection rules into the Civil Code, in part because the market economy does not exist independently of the consumer market and the producer market, the mandatory rules of the two kinds of market legislation, respectively, but not conducive to the establishment of a unified Europe, an effective civil law system; and partly because, if the will of some special consumer protection rules on the Civil Code, the rules will lead to civil law can not be fully in real life play a role. Because the parties to commercial contracts generally will develop a detailed format of the contract, making any of the Standard in the Civil Code does not have any significant effect. As for consumers and other vulnerable groups, because the application of mandatory norms to protect their interests and not provided for in the Civil Code, which can lead to the Civil Code there is no significance to them. {23}

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6.

Unique system of Property Act is a legal act, and wills from the contract system in the abstract system, the legal system. In Roman law that it had bud. In modern times, the French created a broad legal concept that applies not only of property, also applies to family law, administrative law and so on. {10} However, in the legislation establishing the legal acts of the formal system, it is the Saxon Civil Code 1863 and subsequent German Civil Code. {24} The legal acts mentioned in the German Civil Code is one or more persons engaged in one or more of the behavior with the internal relations, its purpose is to cause some sort of legal consequences of private law, but also even between the individual and the individual a change in legal relations. {25} The claim was again divided into specific behavior and property behavior. The so-called debt refers to the occurrence of behavior, change, or termination of a debt constitutes a further relationship between the behavior of the content. Property Act means the occurrence, change, transfer or elimination of a property for the content of the act. {25} The reason why the German Civil Code distinction between acts and Property Act claims are based on Savigny's Theory of Property Act. According to the theory, the property is no longer the result of changes in the incidence of claims by the parties means that efficacy and effectiveness of behavior that claims to be determined, but should be independent of its intention Real Property Act is to be determined, that is what we usually Right debt behavior and behavior that the principle of distinction and without reason principle. {26}
behavior theory in Germany after the introduction of property rights, triggering fierce debate scholars, certainly those who have, who have denied it. From the EU Member States, the French Civil Code, the Austrian Civil Code, that there was no recognition of property rights acts. As for the Swiss Civil Code, the adopted eclecticism, on the one hand recognize the claims of the distinction between behavior and Property Act, but denied the other hand the behavior of thing without cause. {27}
Then, as for the European Union legal acts of the European Civil Code to whether it should take legislative theoretical model? View details from the draft, which takes the eclectic model, but this eclecticism eclecticism and the Swiss Civil Code is not entirely consistent. On the one hand, the draft recognizes claims the distinction between behavior and the principle of Property Act. On the other hand, to claim the relationship between behavior and Property Act, and in some cases there is a result of recognition of their relationship, while in other cases they confirm their relationship without cause. The following one by one according to the provisions of the draft European Civil Code.

First, clause Ⅷ. -2:101 Article (general requirements for transfer of ownership) established the distinction between debt principle of behavior and property behavior. Subsection (1) provides: This chapter of title transfer requirements: (a) the existence of goods; (b) the goods may be transferred; (c) the transfer of the right to transfer ownership of the goods; (d) the assignee under the contract (contract), other legal action or court decision or rule of law have the right to transfer people from the Department to accept the transfer of ownership; (e) transfer the ownership of the existence of an agreement when the (agreement), and the conditions of the agreement were met, or in the absence of the agreement, there is considerable delivery or behavior and delivery. From which (d), point of view, to transfer title to the goods, there must be a contract action or other legal acts. In accordance with (e) provides that, to transfer ownership, in addition to act with the contract (contract), the transfer of the ownership must also be to have an agreement (agreement). Obviously, the former called the "contract actions", that is, the sense of the German Civil Code claims act, which called the "agreement", that sense of the German Civil Code Property Act, the equivalent of the German Civil Code Article 873 The "agreement (Einigung)". The principle of distinction in clause Ⅷ. -2:103 Bar and Ⅸ. -2:105 Also reflected in Article. No. Ⅷ. -2:103 Time requirements for transfer of ownership, "... ... depends on the parties to the agreement (agreement), but the law requires member countries other than the registration of ownership can be achieved." And Ⅸ. -2:105 Article (grant security conditions) provides that "(4) The security interests of secured creditors according to the contract (contract for proprieta-ry security) the right to demand the right to grant a security guarantor; (5), the secured creditors and secured person to grant a security to guarantee the right of the owner reached an agreement (agree) ".

Secondly, clause VIII. -2:202 Article (void ab initio, the subsequent revocation, withdrawal rights, disarmament and withdrawal effects) part of Property Act is to establish a case for cause and not due to some circumstances the principle. It provides that: "(1) If the underlying contract (underlying contract) or other legal acts void ab initio, no effect of the transfer of ownership occurs. (2) after the transfer of ownership, if the underlying contract or other legal acts pursuant to section Second series VII (invalid reasons) been revoked, then the ownership is never transferred to the assignee as (ownership retroactive effect retroactive proprietaryeffect). (3) If the ownership required by Part II of Chapter V the right of withdrawal or the provisions of Chapter III of III or IV of the eighth to lift the classification and cataloging donations revocation of the contract must be re-transferred (re-transferred), and then there is no retroactive effect of the ownership, title and does not immediately re- transfer. Ⅷ .- 2:201 (ownership transfer effect) (4) shall not be affected ... ... "and Ⅷ. -2:201 (Ownership transfer effect) (4) provides that, if the ownership has been transferred, but the transfer will retain the right to refuse delivery (subsection (2) (b),), then released when the refusal to perform contractual relationship, enjoy the following ownership under the terms of retrospective effect. From Ⅷ. -2:202 (1) and (2) shall run, established the property of their behavior because of the principle that if the underlying contract (that is, claims the sense of the German Civil Code the contract) because the void ab initio or because of fraud, duress, mistake, improper use, or for violating the mandatory provisions of the basic principles or is revoked, then not only the underlying contract (debt behavior) is invalid and void property behavior, that the effect of transfer of ownership does not occur.

But the first Ⅷ. -2:202 (3) shall in turn established the Real Rights and principles. To facilitate the provision of accurate understanding of a situation in which I take, that the provisions of Chapter III of Part III of the lift to do a specific analysis. Chapter III (non-performance remedies) is a contract under section V of lifting system. In accordance with section Ⅲ. -3:501 (Scope and definitions) (2) provides that the discharge is "cancel all or part of the relationship (contractual relationship)". While in Subsection 4 (restitution) of the specific provisions of the lifting of the legal effect, according to the first sub-section Ⅲ. -3:510 Article (benefits received by the return of the discharge) (1) provides that "once the requirements under this section to terminate the contract, the basis for the termination of the contractual relationship is a contractual relationship or part of the debt from the other party to perform to obtain benefits at a party (person charged) obligation (is obliged to) return to the interests of ... ... "while subsection (3) provides that," if the interests of the (non-monetary) is transferable, through transfer way to return. ... ... "under the draft from the effect of lifting the system point of view, first of all, if the fundamental breach of contract caused by the exercise of the Right to cancel a party, claims the contract between the parties is invalid (ie Ⅲ .- 3:501 (2) of the required contractual rela-tionship). Secondly, one of the parties before the contract terminates the contract based on ownership of the goods delivered, the contract is terminated when the retroactive effect of ownership does not occur immediately, but must adopt a "return" approach to recover the ownership of goods, people are obliged to receive the goods (is obliged to) to re-transfer (re-transferred) the ownership of the goods. It can be seen lifting system to lift the contract claims only act who does not lift the Property Act. Behavior that is independent of established property rights claims because of the principle of free behavior.

Fourth, the draft European Civil Code, the challenges to traditional civil law theory

Development of the draft European Civil Code, amended in many ways, the traditional civil law concepts and ideas, thus constituting a challenge to traditional civil law.

(A) the nature of the challenges of domestic law, civil law
countries to develop national laws is the adjustment between countries and peoples and the relationship between the people of the laws, and adjustment of the formation of inter-State relations against international law. According to the traditional point of law, civil law is domestic law. In fact, in Gaiyou Si legal ladder, the predecessor of the modern civil law is civil law, "every community has set for itself the law." And all nations against a common form used in the law of nations. Public law which established the nature of domestic law. {10} The nature of the legal state in the 16th century, nationalization and departments of the flood of law has been further strengthened. During this period, the major European countries have developed their own for their own civil code.

However, the nature of domestic law in recent years, integration and globalization movement, be challenged. Not only in terms of civil law of obligations, in terms of personality law, property law, it is also reflected. If the person and dignity, in order to characterize a wide range of global exchanges of all ethnic groups the concept of human impact of civil law, modern scholars tend to use the human person and the Legislature to replace the traditional concept of natural concepts. "Argentina one of the draft Civil Code," Article 15 it states: "The existence of the human person begins with conception." {10}
in property law, the typical manifestation of the emergence of the common heritage of mankind. As a result, countries of their domestic "matter" is no longer entitled to rule out interference in the rights of his country, but by the international civil constraints. Such as "Protection of the World Natural and Cultural Heritage" World Heritage proposed the right of all mankind, such as artifacts, sites, buildings, on the one hand the country estate owned by all the other owned by all mankind, the latter against the former title of ownership abuse. {28}
development of the draft European Civil Code is further evidence that the Civil Code is no longer a purely domestic law. Because the draft is not only directly from the multi-national team composed of scholars, jointly drafted, and the development of the ultimate goal is to be applied uniformly throughout the EU member states of the Civil Code. From drafting to the specific application code, are beyond the borders of a country, which, essentially breaking the civil law is the law of nature.

(B) equality of the main challenges of the Civil Code
from Roman law, the traditional culture of the Civil Code will attract outstanding theoretical achievements of mankind, forming a personality of equality, the sanctity and autonomy of private rights and other basic concepts. {24} personality equal to the highest concentration of the adjustment reflects the civil law nature of social relations, different from other parts of civil law is the main sign. Is no need to stress that the public need not expressly rule of reason.

However, since the late 19th century, humanity has undergone profound changes in economic life, there has been serious polarization, producers and consumers, business owners and workers increasingly sharp confrontation. In the modern market economy, the producer / business owner and the consumer / worker is no longer the equal relationship between, in essence, forming a relationship between dominance and being dominated. {29} 90 to fundamentally shake the traditional idea of ​​equality of civil personality.

Which resulted in the Civil Code countries outside the protection of isolated vulnerable groups such as workers and consumers a special law. However, this legislative model is still in the concept of civil law to maintain the character of this fundamental ideological premise of equality. Because of labor law and consumer protection laws equal thought and personality clashes, therefore divorced from outside the traditional civil code.

However, the draft European Civil Code has changed the traditional concept of directly to consumers, consumer contract included in the Civil Code, and clearly the consumer as a vulnerable side, thus giving special protection. Thus, the main body of the Civil Code is no longer an abstract equality of the "personality", but one specific, real personality. The shift in the main body of civil law, that is what Mr. Eiichi Hoshino, "'from the abstract to the concrete person of personality' change is in the back 'from a rational, meaning strong and wise man said to the weak The stupid people 'change. "{24} Since then, the civil law is no longer the dominant position of equality.

(C) The challenge of civil private law from the Roman
been established classification of public and private law, civil law tradition of civil law concepts do not think that is private. China was once denied civil private law. However, since the economic reform, the thought of one of the changes, the formation of private law, civil law of the situation of dominating the world. However, in civil law that crossed the mood after a period of private law, this idea has been challenged by scholars. Civil law includes a number of factors that also will be excavated. Such as the Civil Code provisions relating to a force of personality and reflects the vertical relationship of the property law is also the presence of a large number of peremptory norms. {10} 93 As a result, scholars have to admit that personal law and property law, the force of dominant norms, but any method is mainly reflected in the debt, especially in contract law. However, the formulation of the draft European Civil Code proving once again that not only the personal law, property law there are a large number of peremptory norms, even if the contract for the sale, lease contracts, guarantees and other people in the Contract Law, there are also a lot of protection of vulnerable groups such as tenant consumers of mandatory regulation. In addition, Part I, Part II, III and VI of the anti-discrimination principles, human rights protection provisions and the principle of good faith, etc. are also embodied the spirit of private public law. Since then, no longer a purely private law, civil law, any law, but any method and force method, public-private hybrid method.

Fifth, the draft European Civil Code, Civil Law of China Reference

Present, China's Contract Law, Property Law and Tort Law has been drafted, the final codification of the Civil Code schedule just around the corner. However, to draft a suitable condition of our country and get recognized as outstanding scholars Civil Code, not only of our country's national tradition, legal traditions and economic systems, they should learn from the 20th century, the latest legislative experience abroad. {19} and the draft European Civil Code is the world's most advanced Civil Code (Draft) one. It's drafting, both in legislation based on the idea and the design of specific rules or on reference of the Civil Code are of great significance.

(A) of the draft European Civil Code
Minshangheyi method for the legislative model of how to achieve Minshanggeyi important reference value. Minshanggeyi since the enactment of the Republic of China Civil Code, in the development of private law, the dominant mode. However, how Minshanggeyi, scholars are vague. In China, the legislative practice, it is not very successful. For example, 99 years promulgated the "Contract Law", its scope includes both businessmen, including consumers, is typical of Minshangheyi. However, in the drafting of the development process, its does not establish what is a civil (consumer) contract for a foothold or a foothold in commercial contracts, civil rules and rules for mixed commercial a heap, tangled, leading to some provisions of the obvious "commercial of excessive ", and some provisions are clear," lack of business oriented. " The former example, from the 398 we can derive the commission contract has paid characteristics, to the neglect of non-businessman between the unpaid commission issues; the latter, such as 130 transactions of the subject matter is limited to a body of material requirements, and 132 trading subject matter "should belong to the seller or the seller is entitled to dispose of "requirement, 410 the principal or the agent may terminate the agency appointment contract provisions. {30} and scholars drafted and published several draft Civil Code Civil Code and the Law Committee of the draft, was not a good solution to this problem. Leading commercial law scholars have been calling in the Civil Code, the separate General Commercial Law, Civil Code in order to make up deficiencies. {31} The development of the draft European Civil Code, but provides us with a good model, that some of the principles of property law on the Civil Code to the main commercial norms, supported by civil norms. There are two advantages of such a deal. On the one hand, modern transactions were for the most active commercial transactions, and therefore we will be fully commercial contract specifications, the only difference between the contract on the consumer to be special provisions, thus helping to achieve cost savings legislation. On the other hand, part of property law in the Civil Code clearly dominated by commercial norms, but also help to avoid the result of unclear legal norms foothold Rules "Business of the excessive" or "Business of the lack of" issue.

In fact, this model draft European Civil Code, since the late 20th century, reflects the international trend of the revised Civil Code [6]. Who is the most typical of the Dutch Civil Code and the 2002 German Civil Code, "modern law of obligations" (das Gesetz zur Modemisierung des Schul-drechts). In addition, the latest revision of the Japanese Civil Code are to this direction. Currently, the Japanese Civil theorists have started to modify the Civil Code of Japan. They set up a major participation of experts from the civil law civil law (creditor law) amend the seminar, and in which established scholars from the commercial law group. The revised objectives are the modernization of the Japanese debt law, focusing on general civil code, and the Japanese debt law changes, the traditional civil law, "people" of the Act extend to "Merchants and consumers" of the law. {32} Thus, the Civil Code of the preparation to start again in the future, it should draw on the drafting and revision of the International Civil Code, the latest trends and patterns, a change in the current draft version only provides the "people" of the civil law model, and adopt "enterprise and consumers, "Legislation. And specific rules designed primarily to commercial rules, civil rules, supplemented to realize effective integration of civil and commercial law.

(B) civil law and common law systems of the specific fusion
The draft European Civil Code we consider how to achieve integration of civil law and common law, or the future of private law to achieve the unity of the mainland and Hong Kong, Macao great reference. As we all know, in 1997, before the reunification, Hong Kong under British rule, the legal system is typical of common law. Macau returned to China in 1999, is a former Portuguese colony, naturally follow the Portuguese legal system, typical of the civil law, more precisely, belonging to a child under the civil law legal systems, the Iberian - Latin American legal systems. However, in the return to the motherland, based on the two systems, Hong Kong and Macao still retains the original legal system. Taiwan have not yet unified, the typical German law under civil law. Mainland, Taiwan, the rules are not uniform, especially the differences between the rules of commercial transactions increasingly hindered economic development in four places.

Therefore, to a certain extent, the basic unity of the need for a certain trading rules. At least, scholarly Research, we should take into account the needs, and actively explore and make for the future when conditions are ripe to be four places in the trading rules and even the realization of complete reunification of the rules of private law. [7] and in our current process of drafting the Civil Code, we should also be rules on the Mainland, Taiwan, the unification of leeway.

This end, we the one hand, the study of comparative law, comparative law should be changed the traditional focus on the various legal systems as well as among national, regional differences between the legal system, and focuses on Hong Kong, Macao and the mainland civil law and civil law norms between the common norms of civil law to provide for the future unified theory. On the other hand, we have the process of drafting specific, and should employ well-known Hong Kong, Macao regions involved civil and commercial law experts, civil code was drafted as part of our members or consultants to the law on the coordination between the various regions to provide advice and choice. In fact, scholars in mainland China, please Macao Civil and Commercial Law at the idea of ​​drafting the Civil Code, not thinking there should be any difficulty. Because the legislative history of the International Civil Law, drafted by the help of foreigners is not uncommon, not to mention we just ask our scholars in Hong Kong, Macao region only! [8]
(c) whether it should return to the civil law family law family law
in the history of our civil law has undergone a process of minutes after the beginning of cooperation. Late development of the "Draft Civil Law of the Qing Dynasty", the Northern warlords, "Draft Civil Law of the Republic of China", and National Government in 1930 to develop "Republic of China Civil Code," family law into the Civil Code regarded as the draft Civil Code or Civil Code an important series. However, the new China was founded, due to the impact of Russian Civil Code, family law to escape the Civil Code. {27} also affected academic, family law is no longer considered to be part of civil law areas. [9] However, since 1998 the NPC decided to resume the Civil Code, the domestic civil law already basically formed a consensus academics, family law should go back to the Civil Code. {33}
However, as mentioned above, the draft European Civil Code is a typical property, the identity of law does not regulate areas are family law, inheritance law and so on. Can we deny this ground of family law for the return? I think that we can not draw such a conclusion.