What Kind of Civil Code Is Needed in China?:On the Positioning of Commercial Law in Civil Code

The compiling of the Civil Code is not a creation of new texts,but the introduction of a kind of concept,spirit and culture. What to be included shall be the fundamental and universal rules applicable to all social subjects. Therefore the compiling of the Civil Code is not only a significant legislative activity,but also an important political act by the State. The purpose of the compiling is not to fill gaps in the legal system,but to promote the legal culture and the rule of law in China by the cultural implications and radiant feature of the Civil Code,promoting legal spirit and legal culture in China. The compiling of Civil code needs support from specific legal spirit,legal concepts and legal values. Consequently the Civil Code should be a Bible of civil rights,which shall guide the basic conducts of citizens. It is also a reflection and sublimation of the national spirit and national culture,as well as a major embodiment of the rule of law. Contents of the Civil Code shall be characterized as fundamental,people-oriented,general,typical,crucial,stable and representative. The basic functional division between civil law and commercial law is that civil law is the basic law to regulate commodity economy and a pre-positioned law in market economy; while commercial law is the basic law in market economy,as well as the center of the legal system in market economy. It is suggested that the compiling of the Civil Code be based on an improvement and upgrade of the General Principles of Civil Law by fully drawing experience from the applicability of the General Principles of Civil Law. In consideration of the legislation cost and acceptability of the society,an upgraded version or version 2. 0 of the General Principles of Civil Law is preferred to a rashly-compiled new version when compiling the Civil Code.