民法典我国应当制定

来源：造价师发布时间：2020-09-15 点击：

　我国应当制定民法典

　郭明瑞烟台大学教授

　在制定民法典上主要有三个问题:一是要不要制定民法典和现在是否有条件制定民法典。二是制定民法典应采取何种体例,是“民商合一”还是“民商分立”。三是民法典的体系如何构造。这三个问题是密切联系的。我仅就第一个问题谈谈自己的一点意见。

　　我认为,我国应当制定民法典。这是由民法典的性质和社会的客观需要所决定的。从民法典的性质上说,民法是调整商品经济关系的基本法,是保障人权的基本法,是保障社会安定的基本法。我国要建立社会主义市场经济体制,发展社会主义市场经济,而市场经济是法治经济,如果连调整商品经济关系的基本法——民法都没有,又如何谈得上法治经济呢?又会是一种什么样的“法治经济”呢?我国要建立社会主义的民主政治,社会主义民主政治本身要求人权得到更真实的保护,人格得到更完善的发展,但若连保障人身权和财产权的基本法都没有,又怎么谈得上加强民主与法制建设呢?社会主义的经济建设、政治建设都离不开一个安定的社会环境,稳定是发展的重要前提条件,但是若没有调整民事关系的民法来保障信用关系,没有民法保护公民、法人及其他组织的各项民事权利,没有民法来调整平等主体间的各项利益关系,又如何能以法律手段来解决各种民事纠纷,维持社会的安定团结呢?

　　从我国民事立法的经验教训上看,自建国以来,我国的民法起草工作几起几落。其原因尽管是多方面的,但是,每次的“起”无不是因为开始强调民主与法制,重视商品经济关系的发展;而每一次的“落”也无不与强调“阶级斗争”,忽视经济建设与民主政治有关。也正是因为十一届三中全会以后,我国的工作重点转到以经济建设为中心上,随着改革开放,我国的民事立法才出现了新的生机和活力。现在我国的经济、政治改革的方向与目标已经确定,也提出了建设社会主义法治国家的目标,因而也就完全具备了制定民法典的客观条件。因此,我们认为,我国的现实社会需求民法,呼唤民法,我们应当顺应这种需求尽快制定民法典。

　定民法通则,恐怕单是要不要民法,是否以经济法取代民法还要争若干年,民事法律的制定和民法观念就会更加不适应社　当然,我国民法典的编纂并非一定采取一步到位的做法。我们可以在现有的单行法的基础上分编地制定民法典。但是,我认为,首先从立法指导思想上应当有制定民法典的观念,在立法工作的部署上应有制定民法典的统一规划。从近几年的立法看,由于过分强调立法的“适用性”和“急需性”,缺乏制定统一的民法典的思想指导,因而也造成了许多民事法的相互冲突和重复,造成立法资源的破坏和浪费。并且,有的后遗症很难消除。例如,我国合同法的“三足鼎立”局面,许多有识之士都认识到其严重缺陷,立法机关也开始着手将其统一和完善,但是却有相当大的阻力,历经数载,仍不见成效。如果我们一开始就从编纂民法典上考虑合同法的立法,岂不可以避免这种多部合同法的现象?如果说,当年立法时因处于改革的初期,有的问题看不准,只能“成熟一个制定一个”,“急需什么制定什么”,那么,这种状况现在应没有理由再维持下去了。

　　有人认为,民法的社会基础是市民社会,我国现在不具备这种条件。我不同意这种观点。从语源上说,民法来自于罗马市民法。罗马市民法是适用于罗马市民的法,而罗马市民也不过就是罗马的自由人而已,其实质在于他们之间的关系是一种平等的关系。近代社会的民法的基础是近代的市民社会,这也是以人的自由与平等为表征的,也是以主体的独立人格为前提的。平等与自由是联系在一起的,所谓民法为私法,强调的也正是民事关系的平等性和“意思自治”。市民社会中的市民与平日所说的城市市民并非完全相同的概念。我国市场经济的发展,民主政治的建立,公民权利和私有财产的保护等等,正是民法存在的“市民社会”基础。当然,在现实生活中,对“私权”和“自由”的保证还存在这样那样的问题,市场经济体制也还未完全确立。但是我们不能仅强调法是现实经济生活反映的一面,不能仅看到法律对已有关系的保护和“固定化”的一面,更应看到法创设符合其要求的社会关系的一面,看到法的导向功能。建设社会主义法治国家,要树立法律的权威性,要有完善的符合社会发展方向、符合经济发展要求、符合民主政治建设的法律体系,如果连民法都不完备还侈谈什么完善的法律体系呢?

　　还有的人认为,我国虽客观上需要民法,有制定民法的社会基础,但主观上不具备制定民法典的条件。其理由是我国的法学是“幼稚”的,民法理论的研究还不够深入等等。这些理由有一定道理,但我不完全同意。我认为,我们有国外的先进立法可以借鉴,有几十年的经验教训,有近20年的现代民法的研究(这里我只计经济合同法颁布以后的研究),有一支民法的研究队伍(既有一批参加50年代立法的老专家,又有一批从各发达国家学成归来的新学者),单单这些条件还比不上50年代初进行民法典编纂时的条件?还比南京国民党政府制定民法典时的条件差?另一方面,任何一部法律也不是一开始就是十分完备的,都要有一个在实践中随社会的发展不断修改、完善的过程,被奉为经典的法国民法典、德国民法典不是也经过多次修改吗?再从我国的民事立法经验看,我国《民法通则》尽管存在这样或那样的缺陷,但其深远的意义和影响是不可否认的。如果当时也追求“完善”而不制　当然,我国民法典的编纂并非一定采取一步到位的做法。我们可以在现有的单行法的基础上分编地制定民法典。但是,我认为,首先从立法指导思想上应当有制定民法典的观念,在立法工作的部署上应有制定民法典的统一规划。从近几年的立法看,由于过分强调立法的“适用性”和“急需性”,缺乏制定统一的民法典的思想指导,因而也造成了许多民事法的相互冲突和重复,造成立法资源的破坏和浪费。并且,有的后遗症很难消除。例如,我国合同法的“三足鼎立”局面,许多有识之士都认识到其严重缺陷,立法机关也开始着手将其统一和完善,但是却有相当大的阻力,历经数载,仍不见成效。如果我们一开始就从编纂民法典上考虑合同法的立法,岂不可以避免这种多部合同法的现象?如果说,当年立法时因处于改革的初期,有的问题看不准,只能“成熟一个制定一个”,“急需什么制定什么”,那么,这种状况现在应没有理由再维持下去了。

　　总之,制定民法典的客观条件和主观条件都已基本具备,我国的法学家应当担负起历史的重任,尽快制定出我国的民法典。

　Trade union work systemTrade union work systemThe staff and workers' CongressChapter I General principlesThe first is to protect my company workers democratic management power, full of enthusiasm and creativity of employees, wisdom run company, this regulation is formulated.Second public companies in the implementation of the board of directors general manager responsibility system under the leadership of the building at the same time, must establish and improve the system of workers' Congress and other democratic management systems, security barrier and play the role of trade union organizations and representatives of the employees table in consideration of the major decision-making enterprises, supervision and supervision of administrative leadership, power and role of safeguarding the legitimate rights and interests of workers and so on.Third the trade union committee of the enterprise is the work of the staff and workers' Congress, and is responsible for the daily work of the staff and workers' Congress.Fourth the staff and workers' Congress shall accept the ideological and political leadership of the Party committee, and shall exercise its functions and powers within the limits prescribed by law.Article fifth the staff and workers' Congress shall actively support the general manager to exercise the authority of the management and decision making and the unified command of the production activities.Sixth of workers' Congress of democratic centralism.Second chapter of authorityArticle seventh the staff and workers' Congress shall exercise the following functions and powers::A general manager, to listen to and consider the science about the company's operating principles, long-term long-term planning, the annual plan, the basic construction plan, major technological transformation and technology introduction plan, staff training plan, its own funds allocation and use of the program, and put forward opinions and suggestions, and make a resolution on the implementation of the scheme.Two, consider the company's salary adjustment through the program, the labor protection measures programs, incentives and other important regulatory rules and regulations.Three, to consider the use of the program, the welfare of the staff and workers' welfare programs and other major issues related to the lives of the workers and staff.Four, evaluation and supervision of leading cadres at all levels of the company, and put forward suggestions on punishment and the appointment.In five, the workers' Congress meeting, can by the general manager on behalf of the government, the chairman of the trade union staff representatives signed the system of equal consultation and collective contract, for the common goal for the development of the company, each other is to assume the obligation to ensure the implementation.Staff representative of the third chapterEighth employees of the company in accordance with the law to enjoy political rights were elected as representatives of the employees of cocoa.Article 99 the employees' representatives to the department room or the basic level branch as a unit, directly elected by the workers. The operators, technical personnel and management personnel, leading cadres and young workers, female workers have accounted for a certain proportion, the company and the Department of leadership cadres of the general staff to do the total number of deputies to 55 points.Tenth employees on behalf of the Ministry or the basic unit of the Department of the unit is a single unit of the delegation, elected head..Eleventh staff representatives for implementation of the permanent system of election, once every two years, may be re elected. The election of representatives of the employees table unit employees, elected units and workers have the right to supervise and replace the withdrawal of representatives of the staff and workers units.The rights and obligations of the representatives of the twelfth staff and workers:A table, in the staff representative meeting, have the right to vote, to be elected in voting and voting rights. The right to execute executive Congress resolutions and proposal to implement the situation to be checked.Two, on behalf of workers should work hard to improve their own quality, on behalf of the legitimate interests of workers, and truthfully reflect the opinions and demands of the masses of workers, law-abiding model good books work.Three, on behalf of the staff and workers to exercise democratic rights, any organization and individual shall not suppress obstruction and strike retaliation.The fourth chapter organization systemThe thirteenth generation of workers congress delegation chairman presided over the meeting discussion, the members of the presidium shall, operators, managers and technicians. Our company middle-level cadres, including workers, technical personnel, management staff should be more than half.The fourteenth section of the workers' Congress held once a year at least for each meeting, there must be 33 points more than two staff representatives attend the seats. In case of major matters by the general manager, the labor union of the company more than 1/3 staff or staff representatives proposal may convene the meeting. The workers' Congress elections held and resolutions must be approved by all workers represented by more than half.Twenty-fifth of the workers congress around increase and enhance the vitality of enterprises, promote the technology step by step, improve economic efficiency, for enterprise management, an important problem of distribution system and workers life and fix the issue. Staff and workers congress decided in its position within the scope of authority, without consent shall not be modified by the workers' Congress change.Table sixteenth employee representative congress is not in session, the need for temporary solutionAn important question by trade unions called post head meeting of representatives of the staff and workers, and consultation with the down of a workers' congress report confirmed. Head meeting may participate in according to the meeting invited the leadership of the company and other relevant personnel.The fifth chapter of the staff and workers' Congress and the trade unionSeventeenth work as a staff representative of the general assembly of the work of the organization, to undertake the following work:First, the organization of staff and workers elected representatives.Two, the collection of workers on behalf of the major issues of the proposal, presided over the work of representatives of the general assembly of the preparatory work and the organization of the meeting.Three, presided over the meeting of representatives of the staff and workers on behalf of the meeting.Four, the organization of specialized teams to investigate and research, to make recommendations to the workers' Congress, inspection and supervision and supervision of the implementation of the resolution of the general assembly, the implementation of the staff and workers to implement the resolution of the General Assembly on behalf of workers.Five, to the staff and workers into the democratic management of publicity and education, the organization of staff and workers on behalf of the learning policy, business and management knowledge, improve the quality of the staff representatives.Six, accept and deal with the complaints and suggestions of representatives of the staff and workers, maintenance of the legitimate rights and interests of workers.Seven, the organization of democratic management of its other work.The sixth chapter of the Department of the room, the team's democratic managementAccording to the specific circumstances, the eighteenth department may take the form of the employees' Congress or the employee's representative office to exercise democratic management power in the affairs of the authority of the Department.Nineteenth teams and groups of democratic management, by the workers directly participate in the team's trade union leaders and workers under the auspices of the activities carried out under the auspices of the team building by the trade union leader to assist the squad leader.The seventh chapter supplementary provisionsArticle twentieth the company's trade unions shall be responsible for the interpretation of these regulations.Article twenty-first of the regulations issued from the date of promulgation.Trade union workOne, promote the party's road line, principles, policies, the implementation of the higher level of union spirit, under the leadership of the Party committee and the completion of the work of the task.Two, strengthen democratic management, do a good job of the staff and workers' Congress held preparatory, and closing work, do not hold regular workers delegation head of the meeting, to ensure the smooth flow of the main channel of democracy.Three, adhere to the "22" maintenance of unity, do a good job in the labor dispute mediation work, the protection of the specific interests of the masses of the protection of the masses of workers from invasion.Four, strengthen the source participation, actively participate in the company's various policy strategies, measures to develop, and supervise the implementation of the line, reflecting the wishes of the majority of workers and requirements.Five, the organization of workers to carry out labor competition, to make reasonable proposals, small leather, small inventions to create a living activity, fully mobilize the enthusiasm of the production of workers.Six, to carry out the "warm and warm project" activities for the workers to run everything, practical things, to help solve the difficult life, do a good job of mutual assistance insurance and staff and workers to study and research work.Seven, establish and perfect the trade unions at all levels, achieve organization system network, fixed regularly held congress, a good new member of the development and transfer of work.Eight, establish and improve the levels of female workers organization, coordination of relevant departments to do a good job of female female workers "four period", play essential role of female workers into the sky, to promote the development of production, protect the legitimate rights and interests of women workers are not infringed.Nine, the group organized the staff to carry out health, education and teaching in music, small and diverse cultural and sports activities, active corporate cultural life, and strive to enhance the cohesion of the enterprise.Ten, to strengthen the financial management of the union, according to the trade union funds on time, to develop the use of the labor union funds budget, reasonable expenses, and do a good job in the collection and use of union dues.Union membership management systemArticle 1 this regulation is formulated in accordance with the relevant provisions of the articles of association of China's trade union, and with the company's actual situation.Second who meet the conditions for membership in the Union constitution and the provisions of the China < >, has signed a labor contract with the company staff can apply to join into the union.Third apply for unionized workers, shall I put out the application, and the Chinese National Federation of trade unions shall fill in "application form" and "trade union membership registration form", by the union approval group and grass-roots trade union audit, is a member of the union. Its membership from the union committee approved the date since.Fourth trade union members should actively participate in the activities of the union, the right to exercise their rights and fulfill their obligations, and timely payment of contributions.Fifth members will be free to go back. Members of the withdrawal will be written application, through the trade union group, approved by the labor union committee, from the day of withdrawal will stop paying their dues.Sixth members do not have the proper reason to continue for 6 months without payment of membership dues, do not participate in the processing will organize life, education refused to correct, should be regarded as automatic withdrawal.Article 77 where serious crimes and criminal sanctions by members of trade unions, by the Committee for discussion and decision, dismissed its membership.The relationship between the eighth members of the organization changes with the change of labor relations, the labor relations of the members change, the relationship between the members of the human relations with me to transfer, with the membership card to transfer.Ninth to master company membership, every month 25 days before this grass-roots trade unions shall fill in "grass-roots union members report > union office reported to the company, requirements in a timely manner, digital true and reliable.Tenth such as the management of the members of the lost Dangdang, causing unnecessary labor disputes, etc., will be held responsible for the relevant personnel.Eleventh handle refund formalities will have workers, and apply for membership, allowing it to re apply for the admission procedures.Twelfth members retired, retired, laid-off, insurable retained membership. Membership retention period from dues. Members maintain membership, no longer have the right to vote and to be elected in accordance with the relevant provisions of the state. In addition to enjoy the insurance benefits, the same treatment will no longer enjoy membership.Thirteenth the Ordinance shall be implemented as of the date of promulgation, and the right to interpret it shall be in the company's trade union committee.Union chairman job dutiesOne, in the company Party branch and the superior trade union under the leadership of the trade union committee, presided over this unit is responsible for the daily work. The trade union work plan, regular arrangement, examination, summing up the work, and timely reporting to the Party branch and trade unions.Two, the implementation of the implementation of the party's line, principles, policies, adhere to the production and operation of enterprises as the center of the heart and to democratic management as the focus, play the essential role of working mechanism of the Congress, the comprehensive carry out the activities of trade unions.Three, the implementation of democratic centralism principle, chaired by members of the general assembly or a member of Congress, trade union committee, democracy, brainstorming, the trade unions do to promote the harmonious development of enterprises and employees, the stability and unity of the home of workers.Four, support the work of enterprise administration, to participate in the development of the enterprise planning, reform and innovation and life and other important work to discuss the work, and actively put forward reasonable proposals.Five, do the preparatory work of the Congress, to complete the work of the congress delegate support.Six, pay attention to listen to the opinions and requirements of the majority of members, in a timely manner to the Party branch and the administrative counter reflection, the maintenance of the rights and interests of workers and the vital interests of the enterprise administrative staff to help improve the welfare of workers.Seven, the organization to carry out health and physical and mental health of the culture and entertainment, sports activities.Eight, responsible for the scope of trade unions in the political learning, assessment, awarding work.Nine, to assist the female staff members will do a good job of female staff and workers, to safeguard the legitimate rights and interests of female workers.Ten, assist enterprises in the relevant aspects of the association, do a good job in the work of retired workers and their families.Eleven, the examination and approval of trade union funds.Twelve, timely completion of the party organization and the work of the superior union arrangement.Detailed rules for the implementation of the regulations of the staff and workers' CongressChapter I General ProvisionsThe first one according to the People's Republic of China constitution in < > and < theconsolidation industrial workers congress during the People's Republic of China regulations cases of industrial enterprises owned by the "spirit, the regulations implementing rules are formulated.The second company employee representative congress is the basic form of democratic management of the enterprise, is the right agency workers to exercise their democratic management. The main work is the trade union committee organization of the staff and workers' Congress, responsible for the daily work of the workers' Congress.Third employees in the company under the leadership of Party branch, to implement the party's line, principles and policies of needles, and state laws and regulations, correctly handle the state, collective, individual interests of the three, in the law within the prescribed scope of authority.Article 44 the Congress shall actively support the general manager of the company to exercise the management decision and the unified command of production, scientific research activities authority.Fifth to establish and improve the system of workers' Congress and other democratic management systems, security and play the role of trade union organizations and representatives of the staff and workers to review the major decision of enterprises in the trial supervision, administrative leadership, role and rights to safeguard the legitimate rights and interests and so on.Article 66 The Congress implement democratic centralism in the system.Second chapter of authorityThe Seventh Congress exercised the following powersFirst, the right to consider proposalsListen to the general manager of the regular work report; review; business policy, long-term long-term planning, the annual plan; basic construction plan; major technical transformation scheme;; employee training plan; financial budget is put forward opinions and suggestions; gold funds allocation and use case.Two, the review of the consent or vetoThe salary adjustment scheme of the enterprise; the bonus scheme; the labor protection measures; the reward measures for the employees and the important rules and regulations of the enterprise are reviewed.Three, to consider the right to decide:For workers Fulili fund; workers housing allocation; other important matters relating to workers Living welfare review will be decided.Four, appraisal, supervision powerLeading cadres at all levels of supervision, regular review, general manager of the office should fulfill the duties and objectives of supervision, the layers of cadres to the general manager of science can be put forward to praise, reward, punishment, promotion or group of criticism, dismissed suggestions.Five, the right to democratic electionsAccording to the superior department in charge of the deployment of the competent authorities or the approval of the higher authorities, the staff representatives of the people's democratic recommendation or the election of enterprise administrative leadership, and the election results reported to the competent authorities for approval.The Eighth Congress will be the taskFirst, the party and government departments to do a good job of the "two" civilization, the workers of the ideological, discipline and professional ethics education.Two, Congress should support education workers of the company general manager for the mobilization of workers to carry out the exercise of the powers, the provisions, abide by discipline, efforts to complete the task.Three, close contact with the general staff and workers, to safeguard the legitimate rights and interests of workers, and truthfully reflect the views and requirements of the workers.Staff representative of the third chapterThe ninth company employees entitled to political rights in accordance with the provisions of the law, can be elected as the representative of the staff.Tenth representatives of the staff and workers to produce, should take the Department, the workshop as a unit, by the workers directly elected, not appointed by the leadership of the leadership. The number of its representatives should be accounted for 10-20%. of the total number of workersEleventh a staff representative should be a worker, technical personnel, management personnel, workers and other leading cadres group consisting of young workers and female workers should be accounted for a proper proportion. A guest, attend on behalf of several seats.According to the needs of the work and the number of representatives of the composition of a number of representatives of the table group, elected leader, deputy leader.Twelfth representatives of the staff and workers of real implementation of the permanent system, every three to four years of election election once, may be re elected.Article thirteenth supplementary supplementary of theJapan soldiers at face value, without trace, left. (22) Shen Longbao bricks crushed to death the Japanese autumn 1941, new Cheng Shen Longbao CPC underground party members were ordered to scout the Japanese military, as he was walking along the top edge of the new town to scout behind the Japanese military police, probably not a box gun

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民法典我国应当制定

来源：造价师 发布时间：2020-09-15 点击：

来源：造价师发布时间：2020-09-15 点击：