Civil code and virtual currency
Publish: 2021-03-24 07:35:05
1.
Civil code (Draft)
Article 1122 estate is the personal legal property left by a natural person at the time of death, except for those that cannot be inherited according to the law or their nature
therefore, since the implementation of the civil code in 2021, the scope of heritage has been extended to the legal property of natural persons, and the legal parts of virtual currency and network property can be inherited
2. On December 23, 2019, the "full version" of the draft civil code appeared for the first time. At the 15th session of the 13th NPC Standing Committee, a of the civil code of the people's Republic of China (Draft) was placed in front of the participants and submitted to the meeting for deliberation<
the "combination" of the draft parts of the civil code and the general provisions of the civil law has become a dazzling mark in the national legislative work in the past year
from the Fourth Plenary Session of the 18th CPC Central Committee's decision to put forward the major legislative task of compiling civil code, to the "two steps": the first step is to introce the general principles of civil law, the second step is to compile the various parts of civil code, and the road of civil code legislation is fast and steady<
in 2019, the division and deliberation of the draft of the civil code will be carried out intensively. We should clearly prohibit usury lending, further improve the relevant provisions on the prevention of sexual harassment, reasonably determine the situation of invalid marriage, and improve the liability rules for throwing objects from high places... We should try to listen to the people's voice, focus on social hot issues, actively respond to social demands, meet the needs of the people's rule of law in the new era, and comprehensively protect people's civil rights, Let every aspect of legislation condense the greatest consensus of social life rules
ring the public consultation period of the draft civil code, 13718 netizens put forward 114574 opinions. The public generally believe that the codification of civil code, the confirmation, consolidation and development of the achievements of the rule of law achieved in the reform and opening up in the way of legalization, fully highlight and centrally reflect the achievements and advantages of the socialist legal system with Chinese characteristics< With the approach of the third session of the 13th National People's Congress, the draft civil code will be submitted to the National People's Congress for deliberation. The Chinese civil code, which has been eagerly expected by generations, is about to usher in a historic moment.
the "combination" of the draft parts of the civil code and the general provisions of the civil law has become a dazzling mark in the national legislative work in the past year
from the Fourth Plenary Session of the 18th CPC Central Committee's decision to put forward the major legislative task of compiling civil code, to the "two steps": the first step is to introce the general principles of civil law, the second step is to compile the various parts of civil code, and the road of civil code legislation is fast and steady<
in 2019, the division and deliberation of the draft of the civil code will be carried out intensively. We should clearly prohibit usury lending, further improve the relevant provisions on the prevention of sexual harassment, reasonably determine the situation of invalid marriage, and improve the liability rules for throwing objects from high places... We should try to listen to the people's voice, focus on social hot issues, actively respond to social demands, meet the needs of the people's rule of law in the new era, and comprehensively protect people's civil rights, Let every aspect of legislation condense the greatest consensus of social life rules
ring the public consultation period of the draft civil code, 13718 netizens put forward 114574 opinions. The public generally believe that the codification of civil code, the confirmation, consolidation and development of the achievements of the rule of law achieved in the reform and opening up in the way of legalization, fully highlight and centrally reflect the achievements and advantages of the socialist legal system with Chinese characteristics< With the approach of the third session of the 13th National People's Congress, the draft civil code will be submitted to the National People's Congress for deliberation. The Chinese civil code, which has been eagerly expected by generations, is about to usher in a historic moment.
3.
Civil code refers to the code which is used to regulate the judicial relationship between equal subjects in the countries adopting written law. The civil code regulates all kinds of legal acts and identity acts in the form of articles and abstract rules. Some civil codes will adopt customary law as a supplementary norm. In addition, most of them stipulate that judicial autonomy among the parties can make up for the deficiencies of various laws and regulations
On May 28, 2020, the civil code of the people's Republic of China was adopted by the third session of the 13th National People's Congress. The law will come into force on January 1, 2021
extended information:
the draft of civil code of China (suggested draft) was drafted by the research group of civil code legislation of Chinese Academy of social sciences. The research group is composed of the Law Institute of the Chinese Academy of Social Sciences, the Law School of the Central University of Finance and economics, the Law School of Peking University, the Law School of Tsinghua University, the Law School of Renmin University of China, the Law School of Yantai University, the Law School of Fudan University, the Law School of Shandong University, the Law School of Beijing University of chemical technology, the Law School of the University of foreign economic relations and trade, the Law School of Shenzhen University, the China Construction Bank Group Legal Department and other units of 26 people
Liang Huixing, member of the academic department, served as the leader of the research group. The draft is compiled in the style of pandektun of Germany, which is divided into seven parts: general provisions, property rights, general provisions for creditor's rights, contract, tort, relatives and inheritance, with a total of 1947 articles
4. "Civil Code" refers to a complete and comprehensive civil law, in which important provisions on property rights, creditor's rights, civil liability and so on are included. Generally speaking, in the case of the civil code, we only need to deal with the ordinary civil legal relationship according to the relevant provisions of the civil code
while the general principles of civil law is only some general provisions on the application of civil law. The system established in the general principles of civil law is generally applicable in civil law practice, but when it comes to adjusting each specific civil legal relationship, it needs to be competent according to the laws of other departments of civil law. Therefore, although the general principles of civil law of our country has provisions on property rights, intellectual property rights and tort liability, it is still necessary to formulate civil laws such as property law, intellectual property law and tort law
at present, there is no complete civil code in China. The civil law adopts the general principles of civil law as the general provisions and the civil law as the specific provisions, which is consistent with the objective reality of China's social and economic foundation and the late start of civil legislation.
while the general principles of civil law is only some general provisions on the application of civil law. The system established in the general principles of civil law is generally applicable in civil law practice, but when it comes to adjusting each specific civil legal relationship, it needs to be competent according to the laws of other departments of civil law. Therefore, although the general principles of civil law of our country has provisions on property rights, intellectual property rights and tort liability, it is still necessary to formulate civil laws such as property law, intellectual property law and tort law
at present, there is no complete civil code in China. The civil law adopts the general principles of civil law as the general provisions and the civil law as the specific provisions, which is consistent with the objective reality of China's social and economic foundation and the late start of civil legislation.
5. Civil code refers to the law code which is used to regulate the private law relationship between equal subjects in the countries adopting the written law. It is a comprehensive code of all the laws in a country to adjust the civil legal relationship. There are two styles of "civil and commercial separation" and "civil and commercial integration". The famous civil codes include 1804 French civil code and German civil code. The civil code regulates all kinds of legal acts and identity acts in the form of articles and abstract rules. The general principles of civil law usually refer to the general principles of civil law of the people's Republic of China, which are the legal provisions on some common problems in civil activities in our country, and are the general law in the civil law system. Since 1986, the general principles of civil law has been playing the role of civil code in our country. It has adjusted the civil legal relations of our country for more than 20 years together with the relevant civil legal provisions in other specific civil laws and other departmental laws< To sum up, the general principles of civil law refer to the general principles of civil legal relations in China. As far as legislation is concerned, the general principles of civil law is only a temporary basic civil law. Civil code is the crystallization of all civil laws when the legislation is mature and comprehensive.
6. The civil code of the people's Republic of China (hereinafter referred to as the "Civil Code") will be passed by the National People's Congress in May 2020. Civil law is the law of rights. It mediates a wide range of personal and property relations between equal subjects, ranging from going to the vegetable market to buy cucumbers and pay electricity bills, to the establishment of companies and buying and selling airplanes, as well as marriage, house purchase, divorce and property division. Civil law is closely related to our lives. The "Civil Code" is known as the "network book of social life", which is the declaration and guarantee of civil rights. What impact will the introction of the civil code have on the legal examination< In fact, the most important influence of the promulgation of the civil code on the examination of civil law lies in its changes in civil norms, which are often the key points of the examination. The author focuses on the following:
1. The system of mortgage (pledge)
Article 186 of the property law
before the expiration of the debt performance period, the mortgagee should pay more attention to the mortgage (pledge)
2, It is not allowed to agree with the mortgagor that the mortgaged property shall be owned by the creditor when the debtor fails to perform the e debt< Article 214 if the pledgee uses or disposes of the pledged property without the consent of the pledgor ring the ration of the pledge, thereby causing damage to the pledgor, he shall be liable for compensation< Article 401 in the draft of civil code, if the mortgagee agrees with the mortgagor that the mortgaged property shall be owned by the creditor when the debtor fails to perform the e debt before the maturity of the debt, it can only be paid in priority according to law< However, the draft of the civil code does not directly deny the validity of the act. Instead, it makes it clear that the mortgagee and the mortgagor agree that the mortgaged property shall be owned by the creditor when the debtor fails to fulfill the e debt before the maturity of the debt, Only in accordance with the law can the mortgaged property be paid in priority, that is, the mortgagee can realize the mortgage on the mortgaged property
we know that the judgment of invalidity is the strongest negation in civil law. It is blindly invalid and can not deal with civil issues well, and may damage the real intention of the parties. However, it is stipulated that the mortgagee's priority of compensation for the mortgaged property will not damage the interests of the mortgagee on the one hand, but also promote the circulation of funds and truly play the function of mortgage on the other hand, It is a progress of legislation
here, I need to explain why the property law stipulates that the mortgagee shall not agree with the mortgagor that the mortgaged property shall be owned by the creditor when the debtor fails to fulfill the e debt before the maturity of the debt
because at this time, the mortgagor is at a disadvantage. If the value of the mortgaged property is greater than the amount of the creditor's right that should be realized, when the debtor fails to pay off the debt when it is e, the mortgagee will get excess benefits, which is obviously immoral and can not be accepted by the principle of good faith
what should be noted here is that when the debt is e, the debtor can not pay off the debt, and the parties can agree to set the value of the collateral to pay off the debt. This is a way to realize the mortgage right, not the stipulation of mortgage (pledge). Students need to pay attention to it< Article 191 of the property law of the people's Republic of China ring the mortgage period, if the mortgagor transfers the mortgaged property with the consent of the mortgagee, he shall pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance. If the transfer price exceeds the amount of the creditor's right, it shall be owned by the mortgagor, and the insufficient part shall be paid off by the debtor
ring the mortgage period, the mortgagor shall not transfer the mortgaged property without the consent of the mortgagee, except that the transferee shall pay off the debt on behalf of the mortgagee and extinguish the mortgage< Article 406 ring the mortgage period, the mortgagor may transfer the mortgaged property. If the parties agree otherwise, such agreement shall prevail. Where the mortgaged property is transferred, the mortgage right shall not be affected
if the mortgagor transfers the mortgaged property, it shall notify the mortgagee in time. If the mortgagee can prove that the transfer of the mortgaged property may damage the mortgage, he may request the mortgagor to pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance. If the transfer price exceeds the amount of the creditor's right, it shall be owned by the mortgagor, and the insufficient part shall be paid off by the debtor<
3 Analysis
the mortgage transfer is a long-standing problem in the property law. Once, the teacher summarized to the students as follows:
(1) the mortgage only refers to the change of the ownership of the mortgage, such as selling, donating, exchanging, investing, and paying off debts. The mortgage, pledge, and lease of the mortgage are not limited
(2) if the mortgagee agrees that it can be transferred, the mortgagor shall pay off or deposit the transfer proceeds to the mortgagee in advance
(3) without the consent of the mortgagee, if the transferee exercises the right of removal, the third party who has an interest will pay off the debt on behalf of the mortgagee, which can be transferred
(4) without the consent of the mortgagee, the sales contract of transferring the mortgaged property is valid
in this mode, if the mortgaged property can be transferred without the consent of the mortgagee and the assignee's right of removal, it depends on whether the assignee is in good faith in the case of movable property, and it cannot be transferred in the case of real property
nowadays, according to the draft of the civil code, it is clear in principle that the mortgagor has the right to transfer the mortgaged property ring the mortgage period, no matter whether it is approved by the mortgagee or not, only if the mortgagee can prove that the transfer of the mortgaged property may damage the mortgage, The mortgagor may request the mortgagor to pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance. Moreover, if the mortgaged property is transferred, the mortgage right shall not be affected
as a matter of fact, for the mortgagee, no matter who owns the mortgaged property, as long as the mortgage exists The draft of the civil code (Draft) is more concive to the mortgage logistics, give play to the guarantee function of the collateral, and promote the financing. This change conforms to the trend of the times
in short, the promulgation of the civil code has a far-reaching impact on the examination of civil law!
1. The system of mortgage (pledge)
Article 186 of the property law
before the expiration of the debt performance period, the mortgagee should pay more attention to the mortgage (pledge)
2, It is not allowed to agree with the mortgagor that the mortgaged property shall be owned by the creditor when the debtor fails to perform the e debt< Article 214 if the pledgee uses or disposes of the pledged property without the consent of the pledgor ring the ration of the pledge, thereby causing damage to the pledgor, he shall be liable for compensation< Article 401 in the draft of civil code, if the mortgagee agrees with the mortgagor that the mortgaged property shall be owned by the creditor when the debtor fails to perform the e debt before the maturity of the debt, it can only be paid in priority according to law< However, the draft of the civil code does not directly deny the validity of the act. Instead, it makes it clear that the mortgagee and the mortgagor agree that the mortgaged property shall be owned by the creditor when the debtor fails to fulfill the e debt before the maturity of the debt, Only in accordance with the law can the mortgaged property be paid in priority, that is, the mortgagee can realize the mortgage on the mortgaged property
we know that the judgment of invalidity is the strongest negation in civil law. It is blindly invalid and can not deal with civil issues well, and may damage the real intention of the parties. However, it is stipulated that the mortgagee's priority of compensation for the mortgaged property will not damage the interests of the mortgagee on the one hand, but also promote the circulation of funds and truly play the function of mortgage on the other hand, It is a progress of legislation
here, I need to explain why the property law stipulates that the mortgagee shall not agree with the mortgagor that the mortgaged property shall be owned by the creditor when the debtor fails to fulfill the e debt before the maturity of the debt
because at this time, the mortgagor is at a disadvantage. If the value of the mortgaged property is greater than the amount of the creditor's right that should be realized, when the debtor fails to pay off the debt when it is e, the mortgagee will get excess benefits, which is obviously immoral and can not be accepted by the principle of good faith
what should be noted here is that when the debt is e, the debtor can not pay off the debt, and the parties can agree to set the value of the collateral to pay off the debt. This is a way to realize the mortgage right, not the stipulation of mortgage (pledge). Students need to pay attention to it< Article 191 of the property law of the people's Republic of China ring the mortgage period, if the mortgagor transfers the mortgaged property with the consent of the mortgagee, he shall pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance. If the transfer price exceeds the amount of the creditor's right, it shall be owned by the mortgagor, and the insufficient part shall be paid off by the debtor
ring the mortgage period, the mortgagor shall not transfer the mortgaged property without the consent of the mortgagee, except that the transferee shall pay off the debt on behalf of the mortgagee and extinguish the mortgage< Article 406 ring the mortgage period, the mortgagor may transfer the mortgaged property. If the parties agree otherwise, such agreement shall prevail. Where the mortgaged property is transferred, the mortgage right shall not be affected
if the mortgagor transfers the mortgaged property, it shall notify the mortgagee in time. If the mortgagee can prove that the transfer of the mortgaged property may damage the mortgage, he may request the mortgagor to pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance. If the transfer price exceeds the amount of the creditor's right, it shall be owned by the mortgagor, and the insufficient part shall be paid off by the debtor<
3 Analysis
the mortgage transfer is a long-standing problem in the property law. Once, the teacher summarized to the students as follows:
(1) the mortgage only refers to the change of the ownership of the mortgage, such as selling, donating, exchanging, investing, and paying off debts. The mortgage, pledge, and lease of the mortgage are not limited
(2) if the mortgagee agrees that it can be transferred, the mortgagor shall pay off or deposit the transfer proceeds to the mortgagee in advance
(3) without the consent of the mortgagee, if the transferee exercises the right of removal, the third party who has an interest will pay off the debt on behalf of the mortgagee, which can be transferred
(4) without the consent of the mortgagee, the sales contract of transferring the mortgaged property is valid
in this mode, if the mortgaged property can be transferred without the consent of the mortgagee and the assignee's right of removal, it depends on whether the assignee is in good faith in the case of movable property, and it cannot be transferred in the case of real property
nowadays, according to the draft of the civil code, it is clear in principle that the mortgagor has the right to transfer the mortgaged property ring the mortgage period, no matter whether it is approved by the mortgagee or not, only if the mortgagee can prove that the transfer of the mortgaged property may damage the mortgage, The mortgagor may request the mortgagor to pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance. Moreover, if the mortgaged property is transferred, the mortgage right shall not be affected
as a matter of fact, for the mortgagee, no matter who owns the mortgaged property, as long as the mortgage exists The draft of the civil code (Draft) is more concive to the mortgage logistics, give play to the guarantee function of the collateral, and promote the financing. This change conforms to the trend of the times
in short, the promulgation of the civil code has a far-reaching impact on the examination of civil law!
7. There are many contents in the civil code, including seven chapters: General principles, property rights, contracts, personality rights, marriage and family, inheritance and tort liability< Article 2 of the civil code of the people's Republic of China regulates the personal and property relations among natural persons, legal persons and unincorporated organizations with equal subjects< Article 3 the personal rights, property rights and other legitimate rights and interests of civil subjects shall be protected by law and shall not be infringed by any organization or indivial< Article 4 all civil subjects have equal legal status in civil activities< Article 5 when engaging in civil activities, civil subjects shall abide by the principle of voluntariness and establish, change and terminate civil legal relations according to their own will< According to whether the content of civil rights is property interests or not, civil rights can be divided into property rights and personal rights. Property right is a kind of civil right which takes property interests as its content and directly reflects property interests. Property rights include not only property rights, creditor's rights and inheritance rights, but also property rights in intellectual property rights
personal right refers to the right that does not directly have property content and cannot be separated from the subject's personal right. It includes personality right and identity right< According to the function of rights, civil rights can be divided into control right, claim right, defense right and formation right
the right of domination refers to the right that the subject can directly control the object of the right and enjoy its interests. Real right, personal right and intellectual property all belong to domination
the right of claim refers to the right to ask others to do or not to do something
the right of defense, in a broad sense, refers to the right of defense or the right to deny other people's claims, some of which are called the right of objection; In a narrow sense, it refers to the right to resist the claim
the right of formation refers to the right that the obligee can change the legal relationship by expressing his own will< According to the scope of civil rights, civil rights can be divided into absolute rights and relative rights
absolute right, also known as the right to the world, refers to the right that its effect extends to all people, that is, the rights of any person whose obligation is not specific. Property right, intellectual property right and personal right are absolute rights
relative right, also known as the right to human rights, refers to the right that its effect extends to a specific person, that is, the right that the obligor is a specific person. Creditor's rights are typical relative rights< According to the relationship between the two interrelated rights, civil rights can be divided into main rights and subordinate rights
the main right refers to the right that can exist independently of another right in two related rights
subordinate right refers to the right whose effect is restricted by another right in two related rights< According to whether there is derivative relationship between them, civil rights can be divided into original rights and relief rights
the original right is the basic right, which is the right in the civil legal relationship of right
the right of relief is derived from the original right. It is a right that occurs when the original right is infringed or has the real danger of being infringed. It is a right in the protective legal relationship< According to the transferability of rights, civil rights can be divided into exclusive rights and non exclusive rights<
exclusive right refers to the right that has no transferability and cannot be transferred by the obligee or by inheritance procere. Personal right belongs to exclusive right
non exclusive rights refer to the rights that are transferable and can be transferred by the obligee or by inheritance procere. Most property rights are non exclusive rights.
personal right refers to the right that does not directly have property content and cannot be separated from the subject's personal right. It includes personality right and identity right< According to the function of rights, civil rights can be divided into control right, claim right, defense right and formation right
the right of domination refers to the right that the subject can directly control the object of the right and enjoy its interests. Real right, personal right and intellectual property all belong to domination
the right of claim refers to the right to ask others to do or not to do something
the right of defense, in a broad sense, refers to the right of defense or the right to deny other people's claims, some of which are called the right of objection; In a narrow sense, it refers to the right to resist the claim
the right of formation refers to the right that the obligee can change the legal relationship by expressing his own will< According to the scope of civil rights, civil rights can be divided into absolute rights and relative rights
absolute right, also known as the right to the world, refers to the right that its effect extends to all people, that is, the rights of any person whose obligation is not specific. Property right, intellectual property right and personal right are absolute rights
relative right, also known as the right to human rights, refers to the right that its effect extends to a specific person, that is, the right that the obligor is a specific person. Creditor's rights are typical relative rights< According to the relationship between the two interrelated rights, civil rights can be divided into main rights and subordinate rights
the main right refers to the right that can exist independently of another right in two related rights
subordinate right refers to the right whose effect is restricted by another right in two related rights< According to whether there is derivative relationship between them, civil rights can be divided into original rights and relief rights
the original right is the basic right, which is the right in the civil legal relationship of right
the right of relief is derived from the original right. It is a right that occurs when the original right is infringed or has the real danger of being infringed. It is a right in the protective legal relationship< According to the transferability of rights, civil rights can be divided into exclusive rights and non exclusive rights<
exclusive right refers to the right that has no transferability and cannot be transferred by the obligee or by inheritance procere. Personal right belongs to exclusive right
non exclusive rights refer to the rights that are transferable and can be transferred by the obligee or by inheritance procere. Most property rights are non exclusive rights.
8. "Civil Code" refers to a comprehensive code of all the laws of a country to adjust the civil legal relationship. It is a complete and comprehensive civil law, in which the important provisions of the civil law, such as real right, creditor's right, civil liability and so on, are included. There are two styles of Civil Code: "separation of civil and commercial" and "integration of civil and commercial". The famous civil code includes 1804 French civil code and German civil code. Generally speaking, in the case of the civil code, we only need to deal with the ordinary civil legal relationship according to the relevant provisions of the civil code
the general principles of civil law is an imperfect, incomplete and systematic law to adjust China's civil relations. It is the proct of the expedient measures of civil policy, but only some general provisions on the application of civil law The system established in the general principles of civil law is generally applicable in the practice of civil law, but when it comes to adjusting each specific civil legal relationship, it needs to be competent according to the laws of other departments of civil law. To be specific, although the general principles of civil law of our country has provisions on property rights, intellectual property rights and tort liability, it is still necessary to formulate civil laws such as property law, intellectual property law and tort law
it should be noted that there is no complete civil code in China at present. The civil law adopts the general principles of civil law as the general provisions and the civil department law as the specific provisions.
the general principles of civil law is an imperfect, incomplete and systematic law to adjust China's civil relations. It is the proct of the expedient measures of civil policy, but only some general provisions on the application of civil law The system established in the general principles of civil law is generally applicable in the practice of civil law, but when it comes to adjusting each specific civil legal relationship, it needs to be competent according to the laws of other departments of civil law. To be specific, although the general principles of civil law of our country has provisions on property rights, intellectual property rights and tort liability, it is still necessary to formulate civil laws such as property law, intellectual property law and tort law
it should be noted that there is no complete civil code in China at present. The civil law adopts the general principles of civil law as the general provisions and the civil department law as the specific provisions.
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