中国民法典基本理念

　 中国民法典的基本理念 民法典的基本理念是民法典制定及其法律规定运用的最高原理， 是对民法的本质及其发展规律的一种宏观的理性认知和建构， 是民法典制定中必须解决的基础性课题。在拟订民法典草案的过程中， 我们应当确立中国民法典的五个基本理念。

　 人权主义

　所谓人权主义， 是指以人权保障为最高理念， 体现以人为本位、以权利为本位的价值观念， 将私权利作为人权的基础权利。人权主义是21 世纪的人文主义。人权主义的民法典， 实际上就是私权神圣的民法典， 它是民法权利法性质的必然要求， 即民法典全面确认民事主体的平等性及其民事权利， 确保民事权利非经法定程序不受限制或剥夺。具体而言， 民法典首先要构建科学、全面的民事权利体系， 坚持除物权、知识产权实行权利法定主义外， 其他民事权利尤其是人身权利， 严格实行任意主义， 摒弃权利必为法律明文确认的僵化观念； 其次， 对不同主体的民事权利给予同等的保护， 确认私力救济制度， 完善公力救济制度， 实行彻底的全部赔偿规则； 再次， 明确规定类推适用在民法上的价值及其司法适用； 最后， 确认法院 不得以法无明文规定或法律规定不明确而拒绝审判。

　 意思自治

　意思自治， 即私法自治， 是指民法范畴内， 民事主体自由地决定自己的行为， 不受任何的非法干预。换言之，民事主体得依自主的意思作出判断， 自主选择、自主参与、自主行为、自己负责， 在法律所不禁止的范围内， 可以自由地依照自己的意思设立、变更、终止种种民事权利义务关系， 在因彼此间的权益发生纠纷时可以选择纠纷的解决方式。意思自治理念实质上就是私法上的自由理念、自由原则。意思自治原则是市场经济方式对法律提出的要求。在市场经济中， 当事人是自身利益的最佳判断者， 他利用自己和他人的能力和知识， 自主地进行民事活动， 对自己的行为负责、享受自己行为带来的利益， 承担自己行为的风险。意思自治能确保民事主体进行民事活动的意思自由， 使之既不受其他当事人的非法干预， 也能抵御不当或者越位的国家权力的干扰， 从而使市场的各种资源配置趋向优化， 保障市场经济的顺利进行。贯彻这一理念， 民法典应当将协议、合同、契约三个概念统一， 恢复《民法通则》中的合同概念， 使一切民事法律行为皆受意思自治规则的调整， 全面落实契约 自由； 在调整契约 关系方面， 尽可能多地设置任意性规范， 使当事人意思表示的效力优于任意性规范和法律推定条款。当然， 这里的自由不是绝对的自由， 而是受法律和公序良俗限制的自由。

　 利益衡平

　利益衡平是指当事人之间、权利主体与义务主体之间、个人与社会之间的利益应当符合公平的价值理念。利益衡平是古今中外立法、司法的一个根本规则， 是民法精神和社会公德的要求。舍却利益衡平， 民法将不成其为民法。基于利益衡平理念， 民法典一是应确认公平原则、诚实信用原则、权利不得滥用原则、公序良俗原则、情势变更原则； 二是要保障交易安全特别是强化对善意的当事人的保护， 建立善意当事人保护的一般规则； 三是确立自然人债务的法定免除制度， 规定一定期限内 债务人确实无力偿付债务的， 债务人可以依据法律的直接规定而主张免除债务； 四是在体现利益衡平理念的同时， 注重效率原则在中国这样一个发展中国家的特殊意义， 注重鼓励交易、物尽其用和资源的可持续利用， 即制定所谓的“绿色民法典”。

　 规范科学法律规范的科学性与法律对现实的迁就、法律规范的通俗性之间的矛盾一直是困扰我国民事立法的突出问题。不顾法的自身的科学性而一味地迁就现实的立法观显然是不足取的。长期以来“法律越通俗越好”的所谓流行观点也必须加以改变。在法律规范的科学性与通俗性发生矛盾时， 我们应当舍弃法的通俗性而保全法的科学性。因为，法律再通俗， 它仍然是相当专业的， 其中最通俗的法律概念比如合同、所有权、保证、继承、收养等， 对一般的人来说， 都难以准确理解。众所周知， 英美法是专家法， 其法律规范主要存在浩如烟海的判例文献中， 普通老百姓是难以知晓的， 但在英美等法治国家里， 普通人是如何行为的呢？ 的确值得我们深思。实际上， 文本法并不等于生活法 .文本法再通俗， 永远也达不到生活法的通俗程度。基于此， 民法典应当采取区别作法， 将涉及民众基本私权利的规范用尽可能通俗的语言表达， 而对除此之外的其他规范则以科学性为唯一目标。坚持规范科学的理念， 民法典还必须以我国本土的活的法律规范为基础并吸收国际上的通行规范， 既要考虑到中国目前的实际， 更要着眼于将来中国大陆、香港、澳门、台湾的“法域”统一， 即应在未来四法域统一的框架下来设计民法典的基本结构、法律概念和法律规则。

　 民商合一

　民商合一抑或民商分立， 这是当代民事法律法典化的重大问题。从中国的历史传统、思维偏好、世界法律的发展趋势看， 我国民法典应当以民商合一为一基本理念。坚持民商合一， 并非轻视或者否认实质意义的商法存在， 而是基于法的自身的规律性和逻辑性的考虑， 反映的是现代市场经济条件下商人特殊地位的覆灭、民法与商法的融合。贯彻这一理念， 民法典应当： ①将公示主义、外观主义、交易安全、交易迅捷、严格责任主义确定为基本规则； ②确认非法人组织的独立民事主体地位， 专章规定合伙企业、个人独资企业等非法人组织的主体法规则， 甚至可以赋予合伙企业以法人资格； ③不区分民事主体与商事主体、民事行为与商事行为、民事代理与商事代理、民事权利与商事权利、民事时效与商事时效， 不设商事法院或者商事法庭； ④明确国际商事惯例在民法渊源体系中的地位， 适当吸取国际商事惯例的可行规则， 将之直接规定在民法典中； ⑤不制定商法典， 也不必制定商事通则， 公司法、票据法、保险法、证券法、海商法、破产法、企业登记法、会计法等仍作为民事单行法存在。

　the "research" make great efforts to provide more targeted for leadership, predictability and effectiveness of comments and suggestions.(three) adhere to the information planning as an important means of expanding. The sources of information, through the network, the media and other channels, increase integration efforts the work of the Communist Youth League and youth information dynamic information resources, increase the information planning efforts to refine the Communist Youth League, and give full play to the role of information reference, to improve the quality of information as a fundamental, outstanding information work sensitivity and timeliness, timely, accurately, comprehensively reflect the municipal Party committee, municipal government, the Central Committee of the implementation of a major deployment, leadership attention, hot and difficult issues of concern to the masses and some important emergencies, timely provide all kinds of deep and valuable component of the following information. Continue to deepen the information research and information feedback system, information report system, information reporting system, information delivery system and information notification system, and constantly improve the information work of the assessment, incentive mechanism, improve the long-term mechanism to improve the information work of sustainable development.Two, pay close attention to contact and communication, efforts to improve the ability of comprehensive coordinationGive full play to a contact, pivotal role, coordination of the parties in accordance with the standard, efficient, high quality principles, firmly establish the principle of service, and effectively improve the level of policy theory, grasp the method of coordinating work, conscientiously do service leadership, service and Service Corps cadres.(a) do to actively carry out coordination. Upstream municipal Party committee, municipal government work report, and the central mission to understand, grasp the key ideas and working organs, targeted focus on reporting the work of mission, to focus on the city's superior league, major activities, attention, support and help.(two) do parallel coordination. To strengthen the contact and communication with the municipal departments, actively seek for the work of care, support, optimize the external environment. To strengthen the group work of the Communist Youth League and other provinces and cities, to grasp the work around the dynamic, active learning around the work experience, the effective integration of resources within the group, and the Communist Youth League career development.(three) earnestly grassroots coordination. Further increase communication efforts, strengthen the organizations at various levels to guide the work of the office and communication, to ensure the situation, reported lower levels of strength, and strive to the grassroots, inspired by the basic spirit of innovation, the formation of good ability of the league office work.Three, pay close attention to the quality of official documents, efforts to improve the ability to deal with textAdhere to high standards, strict requirements, careful attention to the drafting of the draft work, strict document drafting, audit clearance, proof reading and quality control, and strive to improve the ability to deal with the text, and the overall work of the service center.(a) earnestly. To further establish the draft document presentation system research, adhere to the practice, especially the drafting of important days and months multiplying, concentrating on the presentation of the research, understand the situation the situation, fully understand the intention of the leadership, to ensure the output, quality, and constantly improve the quality of manuscript. A manuscript quality appraisal system, the implementation of quantitative assessment, each quarter the comparison of office draft manuscript quality. Establish a reward system to reward the outstanding manuscript selection out, the wrong investigated persons responsible for the major errors.(two) strict master document quality. Strengthening document quality awareness, efforts in the drafting of documents, audit checks, printed all aspects of efforts, strict policy documents audit, content, format and procedures, adhere to the upper and lower check, and check before and after the check, ensure the document style format in the understanding of leadership intentions in place, ideas in the language in place, and strive to improve the quality of various documents.(three) a comprehensive specification document operation. To further standardize the document transfer procedures, emphasizing the precision in document processing, in strict accordance with the operating procedures document sign, registration, approval, distribution, handling, repaying, filing, ensure the document processing standard, accurate, and efficient. Especially to strict dispatch, strict audit document content. Strictly implement the document procedures step by step Shenqian, strict and unified file format, to ensure the normative document. Further the implementation of electronic document processing mode, the full implementation of OA office system, efforts to improve the work efficiency.Four, pay close attention to the work of supervision, efforts to improve the executive abilityThe city's major issues and focus on the overall work of the Communist Youth League to carry out supervision and inspection, insist on the idea, the handling of the key, efforts to promote the implementation of decisions, to ensure that government decrees.(a) on the center of focus on supervision. In accordance with the "grasp the overall situation, focused, practical, quantitative refinement" principle, conscientiously fulfill the supervision function, focusing on the important deployment, major decisions of the party will, secretary's office, department heads meeting agreed matters assigned by the leadership group, the book down and do the important matters and the regiment the key work to focus on supervision, to ensure that the inspection item piece is an echo, everything in the bag, to promote the work carried out smoothly.(two) grasp the key special supervision. According to different periods of work needs, focus on leadership, social concern, hot and difficult problem of youth reflects the implementation of regular and dynamic supervision of special work assigned by the leadership of the special work of tracking supervision, regularly held the Department responsible for the regular inspection work carried out inspection stage. Check or the implementation of the work, to the work of the special supervision and implementation.(three) innovative ways to promote the supervision. To further improve the effectiveness of supervision and inspection work, really play a role in promoting the implementation work. To further improve and perfect the supervision report system, inspection notification system, regularly carry out random checks of the supervision matters, to highlight the effectiveness of the inspection work, to effectively promote the work carried out.Five, pay close attention to daily management, efforts to improve logistical support capacityAccording to "do great things, do small things, start from the details; General requirements from the overall situation", pay close attention to daily management, enhance the foresight and initiative work, do the work of early preparation, program cost fine plan, artful arrangement, high quality services.(a) further strengthen the authority of hardware construction. Combined with the "three hit" work, to further promote the party organ culture construction, and actively carry out party building advanced units, units of civilization, to create the homes of the workers, further standardize internal office conditions, perfect decoration authorities canteen, strengthening the Office building management, further improve the authority office environment.(two) to further strengthen the organization system construction. The implementation of the municipal Party committee of various rules and regulations, in accordance with the norms of management, efficient principle, perfect all kinds of meetings, document processing, logistics system, perfect a set of scientific and reasonable comprehensive coverage, the rules of the system. To strengthen the day-to-day management work, continuously enhance the rigor and the scientific management, according to the requirements of task decomposition, refinement of quantitative indicators, realize the work determination, work process standardization, work system, to promote the daily work efficient and orderly operation.(three) to further strengthen the fine financial management authority. Hold on to open source, to further increase funding for efforts, multi-channel for funding, strengthen the overall financial institutions. The authorities adhere to grasp the throttle, vehicle maintenance, major conference activities, network maintenance and other major expenditure to implement the budget control at the beginning of the year, authorities to strictly implement the financial management system, do a good job the pre final accounts, financial institutions, financial analysis and financial statements related. Adhere to the financial reporting system, improve the efficiency in the use of assets, and the Communist Youth League work continued to develop.(four) to further strengthen security work earnestly. Confidentiality of confidential confidential documents, strict implementation of the management system, security system, focus on the secret of the computer and network security management, strict management measures. Actively carry out regular security education, provided security awareness high cadres of workers, to prevent the loss occurred leak phenomenon. To strengthen the archives management work, conscientiously implement the archives, seal management system, actively carry out the relevant documents, materials, letters and pictures materials collection, registration and filing. The strict safety responsibility system, strictly holidays and night security duty system, strengthen the major work Moving safety work, to ensure safe and orderly.(five) to further strengthen the daily service work. To firmly establish the "rules as standard" point of view, whether do the text, do, act, or on duty, reception, security in strict accordance with the rules, according to the procedures, to ensure standardized operation. Take care of cadres of workers life, seriously deal with the party to do things for the project for the masses and actively improve the cadres of workers welfare. Strict management of vehicles, official vehicles. To ensure the implementation of office smile service system and first asked the first joint service system, the implementation of service complaints system, ensure the quality of service continues to increase.Six, pay close attention to team building, focus on improving the ability to open up innovationIn accordance with the "build a first-class team, with first-class team, a first-class performance, tree class image," the overall requirements, and vigorously strengthen the construction of cadres and workers, and promote the healthy growth of cadres and workers and all-round development.(a) establish the right work ethic. Firmly establish the concept of office work, have a brilliant future, strengthen the sense of innovation, enhance innovation and courage, to free from old ideas, actively respond to the development requirements of the new situation, actively adapt to the new leadership strictly from the high requirements, innovation and breakthrough, promote office work the steps in innovation.(two) to strengthen the ideological and political construction. Continue to consolidate communist education on Party members'advancement activities and enhance awareness of the Communist Youth League education achievements, serious ideological and political work of office staff, carry out the "dedication in the post work, first-class theme contest activities, and guide the cadres and workers to firmly establish a correct outlook on life. And values, the firm high political consciousness, firm political position, strict political discipline, strengthen the cadres and workers of political awareness, overall awareness, sense of service, efforts to form a diligent, efficient, innovative,Rigorous working atmosphere.(three) to carry out the policy theory of learning. To improve the office of cadres and workers pay close attention to the quality of training and learning, strengthen business knowledge and comprehensive knowledge, constantly optimize the knowledge structure, improve the overall quality of the level of proficiency and more than one post to the "Office of the cadres and workers to deal with specific issues. Adhere to the new period of the focus group the overall work, in-depth analysis and exploration of the functions of the office development and the direction of development, and strive to improve the overall awareness and service level of the office of cadres and workers. There are plans, steps to arrange the staff to participate in the exchange of learning and testing exercise, and strengthen the office of the Communist Youth League, and other provinces and cities Level office of the office of business exchanges, and strive to form a strong learning atmosphere.(four) to strengthen the team building. Stick with the system of management, strict implementation of the work system, strictly regulate the work procedures; adhere to the training of people with business, the cadres and workers more responsibility, more to provide the stage, to help with, strengthen staff training; adhere to unite people with feelings, really care about the work, learning and life style; adhere to infect people, guide the cadres and workers of self-discipline, dedication, unity, pragmatic, hard-working and carry forward the spirit of selfless dedication, a successful career in the extraordinary position; adhere to work drive, office team members adhere to lead, take the lead To be, learning, solidarity, pragmatic and incorruptible example.Attachment 2:XX municipal Party committee of the Communist Youth League work points,With Deng Xiaoping theory and the important thought of "Three Represents" as guidance,

　the "research" make great efforts to provide more targeted for leadership, predictability and effectiveness of comments and suggestions.(three) adhere to the information planning as an important means of expanding. The sources of information, through the network, the media and other channels, increase integration efforts the work of the Communist Youth League and youth information dynamic information resources, increase the information planning efforts to refine the Communist Youth League, and give full play to the role of information reference, to improve the quality of information as a fundamental, outstanding information work sensitivity and timeliness, timely, accurately, comprehensively reflect the municipal Party committee, municipal government, the Central Committee of the implementation of a major deployment, leadership attention, hot and difficult issues of concern to the masses and some important emergencies, timely provide all kinds of deep and valuable component of the following information. Continue to deepen the information research and information feedback system, information report system, information reporting system, information delivery system and information notification system, and constantly improve the information work of the assessment, incentive mechanism, improve the long-term mechanism to improve the information work of sustainable development.Two, pay close attention to contact and communication, efforts to improve the ability of comprehensive coordinationGive full play to a contact, pivotal role, coordination of the parties in accordance with the standard, efficient, high quality principles, firmly establish the principle of service, and effectively improve the level of policy theory, grasp the method of coordinating work, conscientiously do service leadership, service and Service Corps cadres.(a) do to actively carry out coordination. Upstream municipal Party committee, municipal government work report, and the central mission to understand, grasp the key ideas and working organs, targeted focus on reporting the work of mission, to focus on the city's superior league, major activities, attention, support and help.(two) do parallel coordination. To strengthen the contact and communication with the municipal departments, actively seek for the work of care, support, optimize the external environment. To strengthen the group work of the Communist Youth League and other provinces and cities, to grasp the work around the dynamic, active learning around the work experience, the effective integration of resources within the group, and the Communist Youth League career development.(three) earnestly grassroots coordination. Further increase communication efforts, strengthen the organizations at various levels to guide the work of the office and communication, to ensure the situation, reported lower levels of strength, and strive to the grassroots, inspired by the basic spirit of innovation, the formation of good ability of the league office work.Three, pay close attention to the quality of official documents, efforts to improve the ability to deal with textAdhere to high standards, strict requirements, careful attention to the drafting of the draft work, strict document drafting, audit clearance, proof reading and quality control, and strive to improve the ability to deal with the text, and the overall work of the service center.(a) earnestly. To further establish the draft document presentation system research, adhere to the practice, especially the drafting of important days and months multiplying, concentrating on the presentation of the research, understand the situation the situation, fully understand the intention of the leadership, to ensure the output, quality, and constantly improve the quality of manuscript. A manuscript quality appraisal system, the implementation of quantitative assessment, each quarter the comparison of office draft manuscript quality. Establish a reward system to reward the outstanding manuscript selection out, the wrong investigated persons responsible for the major errors.(two) strict master document quality. Strengthening document quality awareness, efforts in the drafting of documents, audit checks, printed all aspects of efforts, strict policy documents audit, content, format and procedures, adhere to the upper and lower check, and check before and after the check, ensure the document style format in the understanding of leadership intentions in place, ideas in the language in place, and strive to improve the quality of various documents.(three) a comprehensive specification document operation. To further standardize the document transfer procedures, emphasizing the precision in document processing, in strict accordance with the operating procedures document sign, registration, approval, distribution, handling, repaying, filing, ensure the document processing standard, accurate, and efficient. Especially to strict dispatch, strict audit document content. Strictly implement the document procedures step by step Shenqian, strict and unified file format, to ensure the normative document. Further the implementation of electronic document processing mode, the full implementation of OA office system, efforts to improve the work efficiency.Four, pay close attention to the work of supervision, efforts to improve the executive abilityThe city's major issues and focus on the overall work of the Communist Youth League to carry out supervision and inspection, insist on the idea, the handling of the key, efforts to promote the implementation of decisions, to ensure that government decrees.(a) on the center of focus on supervision. In accordance with the "grasp the overall situation, focused, practical, quantitative refinement" principle, conscientiously fulfill the supervision function, focusing on the important deployment, major decisions of the party will, secretary's office, department heads meeting agreed matters assigned by the leadership group, the book down and do the important matters and the regiment the key work to focus on supervision, to ensure that the inspection item piece is an echo, everything in the bag, to promote the work carried out smoothly.(two) grasp the key special supervision. According to different periods of work needs, focus on leadership, social concern, hot and difficult problem of youth reflects the implementation of regular and dynamic supervision of special work assigned by the leadership of the special work of tracking supervision, regularly held the Department responsible for the regular inspection work carried out inspection stage. Check or the implementation of the work, to the work of the special supervision and implementation.(three) innovative ways to promote the supervision. To further improve the effectiveness of supervision and inspection work, really play a role in promoting the implementation work. To further improve and perfect the supervision report system, inspection notification system, regularly carry out random checks of the supervision matters, to highlight the effectiveness of the inspection work, to effectively promote the work carried out.Five, pay close attention to daily management, efforts to improve logistical support capacityAccording to "do great things, do small things, start from the details; General requirements from the overall situation", pay close attention to daily management, enhance the foresight and initiative work, do the work of early preparation, program cost fine plan, artful arrangement, high quality services.(a) further strengthen the authority of hardware construction. Combined with the "three hit" work, to further promote the party organ culture construction, and actively carry out party building advanced units, units of civilization, to create the homes of the workers, further standardize internal office conditions, perfect decoration authorities canteen, strengthening the Office building management, further improve the authority office environment.(two) to further strengthen the organization system construction. The implementation of the municipal Party committee of various rules and regulations, in accordance with the norms of management, efficient principle, perfect all kinds of meetings, document processing, logistics system, perfect a set of scientific and reasonable comprehensive coverage, the rules of the system. To strengthen the day-to-day management work, continuously enhance the rigor and the scientific management, according to the requirements of task decomposition, refinement of quantitative indicators, realize the work determination, work process standardization, work system, to promote the daily work efficient and orderly operation.(three) to further strengthen the fine financial management authority. Hold on to open source, to further increase funding for efforts, multi-channel for funding, strengthen the overall financial institutions. The authorities adhere to grasp the throttle, vehicle maintenance, major conference activities, network maintenance and other major expenditure to implement the budget control at the beginning of the year, authorities to strictly implement the financial management system, do a good job the pre final accounts, financial institutions, financial analysis and financial statements related. Adhere to the financial reporting system, improve the efficiency in the use of assets, and the Communist Youth League work continued to develop.(four) to further strengthen security work earnestly. Confidentiality of confidential confidential documents, strict implementation of the management system, security system, focus on the secret of the computer and network security management, strict management measures. Actively carry out regular security education, provided security awareness high cadres of workers, to prevent the loss occurred leak phenomenon. To strengthen the archives management work, conscientiously implement the archives, seal management system, actively carry out the relevant documents, materials, letters and pictures materials collection, registration and filing. The strict safety responsibility system, strictly holidays and night security duty system, strengthen the major work Moving safety work, to ensure safe and orderly.(five) to further strengthen the daily service work. To firmly establish the "rules as standard" point of view, whether do the text, do, act, or on duty, reception, security in strict accordance with the rules, according to the procedures, to ensure standardized operation. Take care of cadres of workers life, seriously deal with the party to do things for the project for the masses and actively improve the cadres of workers welfare. Strict management of vehicles, official vehicles. To ensure the implementation of office smile service system and first asked the first joint service system, the implementation of service complaints system, ensure the quality of service continues to increase.Six, pay close attention to team building, focus on improving the ability to open up innovationIn accordance with the "build a first-class team, with first-class team, a first-class performance, tree class image," the overall requirements, and vigorously strengthen the construction of cadres and workers, and promote the healthy growth of cadres and workers and all-round development.(a) establish the right work ethic. Firmly establish the concept of office work, have a brilliant future, strengthen the sense of innovation, enhance innovation and courage, to free from old ideas, actively respond to the development requirements of the new situation, actively adapt to the new leadership strictly from the high requirements, innovation and breakthrough, promote office work the steps in innovation.(two) to strengthen the ideological and political construction. Continue to consolidate communist education on Party members'advancement activities and enhance awareness of the Communist Youth League education achievements, serious ideological and political work of office staff, carry out the "dedication in the post work, first-class theme contest activities, and guide the cadres and workers to firmly establish a correct outlook on life. And values, the firm high political consciousness, firm political position, strict political discipline, strengthen the cadres and workers of political awareness, overall awareness, sense of service, efforts to form a diligent, efficient, innovative,Rigorous working atmosphere.(three) to carry out the policy theory of learning. To improve the office of cadres and workers pay close attention to the quality of training and learning, strengthen business knowledge and comprehensive knowledge, constantly optimize the knowledge structure, improve the overall quality of the level of proficiency and more than one post to the "Office of the cadres and workers to deal with specific issues. Adhere to the new period of the focus group the overall work, in-depth