Memory is the basis for learning law, and the foundation for learning any subject is inseparable from memory.
Memory is achieved through self-training.
Everyone should pay special attention to the fact that there are quite a lot of questions in the judicial examination that are in the article. If you are familiar with these basic and commonly used clauses, it will be easy for you to pass the judicial examination.
Our legal education and legal learning are divided into disciplines based on the laws of each department, Criminal Law , Criminal Prosecution, Civil Law, Civil Prosecution, etc.
You see, the content of the criminal law is limited, just one general rule and a division rule, and the same is true for the Civil Procedure Law, the general rule and a division rule. Criminal Law, Criminal Procedure Law, , and Civil Procedure Law are both public law, and legal rules must be statutory. For example, if the law stipulates that a crime is a crime, you cannot create it. They are all forced law , and there is no so-called arbitrary law .
Civil law is different.
The content of civil law is the legal rules of social life, which regulates social and economic life and family life. Social and economic life is constantly developing and changing, and various new relationships and new problems are constantly arising, requiring the civil law system and theory to develop and change accordingly.
When we were in class, we felt that civil law had too much content.
Not to mention the division of civil law and commercial law , the rules in the fields of companies, bills, maritime commerce, insurance, etc. are divided into commercial law. The civil law disciplines in formal sense also include general provisions, property rights, creditor rights, relatives, and inheritance. The debt repayment is divided into general provisions, creditor rights, and the debtor rights are divided into contracts and torts.
In short, there is a lot of content in civil law, and there are only a lot of concepts in the textbooks we use.
Single statement General principles of Civil Law (total) at least two hundred concepts.
I don’t know if my classmates use my "General Theory of Civil Law". The textbook was published in 96 years and has been revised four times so far, with only more than 200,000 words. Although it is a thin book, if you count the concepts in it, it will be at least more than 200, which is just the concept of the General Principles of Civil Law.
Where is the property rights? There are also general provisions of property rights and property rights. The creditor's rights are also divided into general provisions of creditor's rights and the creditor's rights. Contract Law also has a lot of content, and there are general provisions of contract law and contract law rules.
Therefore, the problem faced by learning civil law is that there are too many concepts, and it is difficult to understand these concepts.
Another difficulty is that civil law is relatively abstract. For example, in the general theory of civil law, what is legal behavior?
We do not see legal behavior, we only see contracts, bequests, , marriage, divorce, buying and selling, leasing, and gifts. Legal behaviors are concepts abstracted from all kinds of concrete behaviors in social life, which are difficult to understand from the beginning.
In the general part, there are also civil legal relations, the elements and compositions of civil legal relations, the so-called subject, content, rights, obligations, objects, changes, legal facts, events, etc., which are all very abstract. Therefore, when students study civil law, they will feel that it is more difficult than studying other subjects, which is its characteristic.
However, if we learn the general theory of civil law better, it will be easier to learn the sub-theory of civil law from the future. I am not sure whether our school divides civil law into general theory, debt rights, property rights, contracts, and tort teaching. In the early stages of civil law teaching, they will teach them as a course. Now some law schools separate it into general theory, property rights, contracts, tort, relatives, inheritance, etc.
Have you noticed that the foundation of the overall thesis is well laid, and it will be relatively easy to get to the later credit theory. The same is true for learning the sub-theory of civil law. For example, if you master the general part of property rights well, it will be much easier for the sub-theory of property rights to be studied.The same is true for learning the contract law. You have a better grasp of the general part of the contract law, such as the basic principles of the contract law, the establishment of the , the contract takes effect, the changes in the contract, the performance of the contract, the extermination of the contract, and the breach of contract liability. It is easy to learn the contract law rules such as buying and selling, leasing, entrustment, contract contract, etc.
Therefore, there are difficult sides to study in the subject of civil law. The difficult side is that the more abstract and basic it is, the more solid it is, the easier it is to go to the future.
just talked about, and you can summarize a learning trick. Whether it is the compulsory courses, the general theory of civil law, the contract law, the property law, the tort law, or the elective courses, the marriage and family law, and the inheritance law, you must first grasp the general theory, focus on learning the general principles well and learning solidly, and then it is easy to divide the rules.
In the entire subject of civil law, it is easy to learn the general principles of civil law well and solidly.
Just mentioned that I wrote "General Theory of Civil Law" with more than 200,000 words and more than 200 concepts. Do you need to master all these concepts? Neither. It is enough to understand the contents of the civil law, such as what is civil law, the history of civil law, civil law in the mainland, civil law, civil law in the British and American law in the civil law, Roman law in the debates during the drafting of Chinese civil law. What is the most important? The most important are several constituent elements of civil legal relations - what is the subject and what is the object? What does the object include? What is power? What is obligation? Then there is the agency system, the time limit system, , which are also the most important.
There is also the classification of rights that is particularly important. When you first start learning, you seem to not pay much attention to the classification of rights, and confusion will often occur in the future.
Classification of civil rights is divided into property rights and non-property property rights based on whether there is property value. Property rights are divided into property rights and creditor rights.
: Whether the effect of the right is valid between the parties or is valid for people outside the parties, the right is divided into absolute rights and relative rights, and it is valid for all people outside the right holder. For example, property rights, and only valid between the parties is relative rights, such as creditor rights.
also has other rights classifications, such as division based on the effectiveness of rights, which are divided into dominance rights, relative rights, and -forming rights .
The right to dominate is the right to directly control the subject matter of the right. Property rights are the right to dominate, and domination is the direct control. You control your mobile phone, your car, your house, etc.
Requirement right is the right to request the counterparty (obligor) to do something, such as the right in the sales contract, requesting the seller to deliver the goods, requesting the buyer to pay, if the seller does not deliver the goods, you cannot go to his warehouse to take away the goods by yourself, because your rights are the right to claim, not the right to dominate. If you want to go to his warehouse to carry the goods away without authorization, it will constitute a crime.
Contract Law Article 230 of the lessee's priority refusal What is the right and nature of it? Article 21 of the Supreme Court's Interpretation on the Urban House Lease Contract (Fayi [2009] No. 11) stipulates that if the lessor fails to tell the lessee in advance to resell the house and the lessee requests the lessor to bear the compensation liability, the people's court shall support it, but if the lessee requests the lessee to declare the reselling of the house invalid, the people's court will not support it. It can be seen that the lessee's right of first refusal is only valid between the parties to the lease contract , and is a relative right and a claim in nature, that is, a claim.
Just mentioned that rights classification is very important.
Article 94 of the Contract Law stipulates that if one of the circumstances stipulated in this article, one or both parties have the right to terminate. The right to termination occurs due to legal provisions, which is called the statutory right to termination.
Article 93, Paragraph 2 of the Contract Law stipulates that when the conditions agreed by both parties in the contract are met, one party has the right to terminate, which is called the right to terminate the agreement.The right to terminate and the right to revoke are called the right to form in our textbooks. It is not easy to understand what formation power is at the beginning, and the concept of formation power is translated. By looking at the definition, you can know that the so-called formation right can determine the occurrence, change or extinction of legal relationship based on the unilateral meaning of the right holder, without any conditions.
Article 96 of the Contract Law stipulates that the termination right holder issues a notice to the other party, and the contractual relationship is eliminated when the notice arrives at the other party. If the other party has objections, he will sue himself.
Article 54 of the Contract Law stipulates that the party who is subject to fraud or coercion has the right to revoke a contract concluded due to fraud or coercion. How can the party with the right to revoke it? The exercise of the right of revocation must be filed with the court in the form of lawsuit, and the court shall rule to eliminate the contractual relationship. Both the right of revocation and the right of termination belong to the right of formation. Some people talk about the so-called "conditional right to form", which means that they have not figured out what the right to form is. If the exercise of rights requires conditions, then it is definitely not the right to form.
This is the classification of civil rights, you must remember it. If the basic concepts of
are mastered relatively well, there will be no confusion in the subsequent discussion cases. This is the basis of the foundation.
Is there a way to learn civil law?
Just mentioned that it is to grasp the general principles and learn the general theory well. It is easy to learn the rules below, which is a method.
There is another method for learning civil law, which is also the basic learning method proposed by foreign scholars:
Memory-understanding-memory.
What do you remember? What do you understand? Memorize the concept, understand the concept. It is inevitable to remember the law when learning more than 200 concepts in the total discussion? No one can tell how many concepts there are in civil law. Then what do we remember? The most basic concept of memory.
The concept in the general theory of civil law is the most basic concept, and the concept of the general principles of the contract law is the most basic concept.
The famous Japanese civil law professor called my wife Rong. He probably died in the 1970s, but he is very authoritative. He talks about the basic methods of learning civil law: memory-understanding, understanding-memory.
I proposed on his basis that in the memory-understanding cycle, you might as well try to use it, memory-understanding-understanding-using.
Combined with some cases reported by the news media, the cases presented by teachers, and some of the students' relatives and friends, try to use the learned concepts to analyze, try to use, deepen understanding through application, and strengthen memory based on understanding. This is the second method, memory, understanding and application.
Now let’s talk about the third method.
Just mentioned that for so many concepts, we should first focus on memorizing the concepts in the general principles, but there are also many concepts in the general principles. So now we propose another method: directly memorize the legal provisions, focus on the provisions, and connect legislation, theory, concepts, normative composition, judicial interpretation, and typical cases. This is different from the current textbooks and teaching methods.
Previous teaching methods, there was a term called "doctrinology" in the country of the civil law system.
What is doctrine? Textbooks are arranged according to the legal concept and lectures are taught according to the legal concept system. Such teaching is doctrine. What we learn in class is not legal provisions, but legal concepts.
At most, some teachers point out which law and which article is used when talking about a certain concept.
If the right to form includes the right to revoke and the right to terminate, it is pointed out that the right to revoke is in Article 54 of the Contract Law, and the right to termination is in Article 93, paragraph 2 and Article 94 of the Contract Law. Teaching is concept-centric and also prompts the articles, with the purpose of enabling students to master the legal concept system and use the legal concept system as the legal basis for students. This teaching method is doctrine.
I used to talk about the methods of learning law and proposed three methods of reading: intensive reading, extensive reading and study.
What is intensive reading? The purpose of reading is to master the conceptual system of this discipline. Of course, in addition to concepts, there are systems, principles and theories. Based on concepts, we simply call the conceptual system. To put it more specifically, it is a system of concepts, principles, institutions and theories. How to master this concept system? The method I proposed is to read intensively and read a good textbook. What is intensive reading? As mentioned earlier, memory - understanding, understanding - memory, understanding based on memory, and deepen memory based on understanding. The purpose of intensive reading is to master this conceptual system. What is a good textbook? The number of words should not be too many. According to my opinion, it should not exceed 250,000 words. The content is relatively concise, but the concept system must be complete and accurate. For any subject, as long as you find such a good textbook and master the conceptual system in it through intensive reading, you will lay a solid foundation.
What is extensive reading? extensive reading means to deepen and broaden your knowledge base through intensive reading and laying the foundation after mastering the basic concept system through intensive reading and broad browsing. Extensive reading is not about reading from beginning to end. It is likely to be just reading which chapter and section of a book. For example, when we see a new textbook, we look through the catalog of this textbook, and compare it with the textbooks I have read carefully. Which part is new, we will look at which part, or which concept has not been learned, and learn this concept. If you read a magazine, you are interested in which article you are interested in. Reading extensively means reading extensively, not every book is read from beginning to end. It is to read one chapter, one section, one page, or even one paragraph of it, in order to make up for the conceptual system you have mastered through intensive reading, and to make up for, improve and enrich it. If you have a solid legal foundation, then expand your knowledge through extensive reading; if you have not mastered a solid foundation, you must master this complete and accurate conceptual system through intensive reading, laying a solid foundation for your future legal career.
What is study? is to read in combination with research questions. If we discuss a case, we must investigate all the information related to the case, including textbooks, works, and papers, collect all the relevant discussions, copy them together, and then analyze them, study them, and compare them. The purpose of study is to train one's own research and analysis ability, and to cultivate one's own legal ability. There is no limit to the subject of study. Any works related to research issues, cases discussed, articles to be written, and disputes involved must be collected and analyzed and studied.
These are the three reading methods I talked about when I was teaching the legal methods in the past, namely intensive reading, extensive reading and study.
It is also necessary to understand that some works are for us to read in detail, such as good textbooks; some works are for us to read extensively, such as other textbooks, newspapers, articles, etc.; some works are for us to study, especially monographs, large-scale systematic books, which can be read in hundreds of thousands of words or seventy or eight hundred thousand words.
I once talked about this learning method in a law school. Speaking of the works of Mr. Shi Shangkuan , Shi Shangkuan died in the 1980s. He used to be a legislator who drafted the Civil Code of the Republic of China.
I said Shi Shangkuan's "General Theory of Debt Law", 900,000 words. When you read it, you forget the front and forget the light after reading it. Such a book is called a systematic book, not for you to read it in detail, but for you to study it.
Some students do not understand the reading method and do not distinguish. The bigger the part, the thicker the part, the more they read it carefully from beginning to end. As a result, they will get half the result with twice the effort, or even less than half.
Just as I finished the class, a graduate student said that he was reading Shi Shangkuan's book "General Theory of Debt Law", which was more than 900,000 words, but he forgot the front when he read it, and forget everything after he read it.
So, we must understand which books are for you to read in detail, which books are for you to study in detail, and which books are for you to read in detail.
I used to talk about this learning method, all of which are to master the conceptual system and belong to the learning method of doctrine.
Now this method is still useful.
However, I just suggested adopting new teaching methods and learning methods, taking legal provisions as the center of teaching and learning, and directly reading legal provisions.
directly read the legal provisions, and through the legal provisions, master the concepts stipulated by the provisions and theories adopted, what is the purpose of its legislation, what kind of social problems to be solved, whether the provision constitutes a complete legal norm, its scope of application, constituent elements, and legal effect, what judicial interpretations have been made of this provision, what problems have been solved through explanations, whether it has clarified the constituent elements, or expanded the scope of application, and what typical cases of applying this provision in judgment practice, are they all mastered and understood through this provision.
Some young comrades said: "You are called article-centered."
I said right, I advocate article-centeredism, that is, a teaching method and learning method centered on legal provisions.
is different from traditional doctrine methods and is another learning method and teaching method. It is a new learning method specifically targeting undergraduate students in law schools and graduate students in law majoring.
Because we want to take the judicial examination, most of the judicial examination questions come from the clauses. By reading this article, it can be carried through legislation, theory and practice. What is the concept of this article, what system is called, what problems in social life should be solved, and what kind of plan should be formulated? What is the legislative policy, what is the purpose of the legislation, whom to protect and who to sanction; its constituent elements, scope of application, how to analyze and how to understand the legal effect; what explanations the Supreme Court has made for the understanding and application of this article, and what typical cases have been published in the Supreme Court's Gazette, are all grasped in one by one through the articles. This is the new, article-centered learning method I advocate.
Students will ask, there are so many articles, such as the 428 articles of the Contract Law. Do each article be memorized and learned in this way?
of course not. I proposed this article-centered learning method, which refers to basic articles, important articles, and commonly used articles. By memorizing these articles, we link them with legislative theory, norms and practices, so that we can build a knowledge infrastructure through the system of articles. A knowledge system like
is completely different from the concept system mentioned above. It has laid the foundation for us to take the judicial examination in the future, be a lawyer and be a judge in the future, and our ability to use the law will greatly improve.
Just mentioned the 428 articles of the Contract Law, and it is impossible for us to read and remember them all. As mentioned earlier, the general provisions are the most important, but there are many general provisions in the Contract Law. The first eight chapters of the Contract Law all have 129 general provisions, and each general provision cannot be memorized and cannot be memorized.
Therefore, we remember important articles, basic articles, and commonly used articles.
I mentioned the issue of contract termination earlier. In Chapter 6 of the Contract Law, the rights and obligations of the contract are terminated, and Article 92 stipulates the contract obligations; Article 93, paragraph 1 stipulates the termination of the agreement, and Article 93, paragraph 2 is the conditions for the right to terminate; Article 94, paragraph 94, mentioned earlier, is the conditions for the statutory right to terminate; then Article 95 is what? Specify the period of existence of the right of termination. Articles Ninety-three and Ninety-four are the most important. The exercise of the right to termination is mentioned in Article 96. The exercise of the right to termination shall be carried out by the termination notice. The contract is terminated when the notice arrives at the other party. If the other party has objections, it may file a lawsuit with the people's court.
Article 96 of the Contract Law immediately occurred. What if the other party has objections after the termination notice arrives at the other party but has been delayed in prosecution in the court? He only filed a lawsuit after half a year, or even filed a lawsuit after a year or two. Should the people's court accept this situation? We should note that Article 24 of the Supreme Court’s Judicial Interpretation on the Contract Law (II) explains that if a lawsuit is filed three months from the date of arrival of the termination notice, the people’s court will not support it. This is interpreted as an objection by the other party and stipulates a three-month objection period. Therefore, when reading the provisions, you must master the judicial interpretation of the Supreme Court.
What else? Article 95 stipulates the period of existence of the right of termination. If the period of existence is stipulated by the law, the right will not be extinguished if the period of exercise expires. As mentioned earlier, the formation rights have exclusion period , and the period is eliminated after the rights are eliminated. Article 95 stipulates that if there is an agreed period or a statutory period, the right of termination will be extinguished when the period expires. But the problem is, there is neither a period for the right to terminate, nor does the law stipulate the period for the right to terminate? Therefore, this problem arises. One party has the right to remove it. He has been delayed in exercising the right to termination and does not issue a notice of termination. It was not until five years later that the termination was favorable to him that the termination was issued and the contract was terminated. Can he be relieved in this situation?
has no provisions on this law. The Supreme Court communiqué published such a case. The right to terminate the right to terminate has been exercised for more than five years, which has made the other party believe that it will not be terminated. At this time, the sudden exercise of the right to terminate will make the other party extremely unfavorable, so the court made a judgment that he did not allow him to terminate. What is the reason? The reason for the first instance court was that this behavior constituted an abuse of rights; the second instance court changed to violated the principle of honesty and trustworthiness of . You see, Article 96 of the Contract Law concerns the exercise of the right to terminate, which involves the interpretation of the Supreme Court and cases in the communiqué. Through the memory of this article, it is impossible to memorize it in a simplified manner, but we know that Article 96 stipulates what Article 96 stipulates. On the other hand, once the right to terminate the right is mentioned, we know that Article 96 stipulates. Then there are Article 97, which stipulate the effect of severance. These are important provisions, basic provisions and commonly used provisions.
There is also the seventh chapter that stipulates the liability for breach of contract, which is of course the most important. You must be very familiar with the article 107, liability for breach of contract; Article 108, expected breach of contract; Article 110, compulsory actual performance; Article 111, Article 112: , defect guarantee liability ; Article 113, paragraph 1 is more important, the calculation method of liability for breach of contract liability, do not ignore the last sentence: unforeseeable rules. For a contract with a total amount of 200,000 to 300,000 yuan, because one party breached the contract, the other party filed a lawsuit with the court. The calculated losses were millions or tens of millions. Can the breach of contract be compensated? No, Article 113, paragraph 1, the last sentence of Article 113, specifically stipulates unforeseeable rules. This article stipulates that the breach of contract party cannot foresee that his breach of contract will cause such huge losses to the other party, so the court can reduce the damages to an amount considered fair and reasonable based on the circumstances of this case. Article 114: The liquidated damages, more importantly, in the first paragraph, the parties may agree on the liquidated damages and also agree on the method of calculating the losses. The liquidated damages in the first paragraph are the so-called compensatory liquidated damages in theory; Article 114, Paragraph 2 is more important, and stipulates that if the liquidated damages are too high or too low, the breach of contract can request adjustments.
These articles are the most commonly used basic provisions in the contract law, and you must be familiar with debts. I am memorizing these articles here to demonstrate how to integrate concepts, theory, legislation and practice through reading the articles.
students, especially those with master's degree, can refer to the article-centered learning method I suggested.
The study of civil law is too complicated and cannot be finished in just a few words. I will talk about these questions raised by this classmate in a moment. If I have time, I can also demonstrate the memory of legal provisions to you.The purpose is to inspire everyone and make students pay attention to the legal profession in the future, and you should pay attention to legal provisions. Just remembering concepts is not enough. You should change from memorizing concepts to directly reading and remembering provisions.
Memory is the basis for learning law, and the foundation for learning any subject is inseparable from memory. Memory is trained by oneself. Everyone should pay special attention to that a lot of questions in the judicial examination are in the article. If you are familiar with these basic and commonly used clauses, it will be easy for you to pass the judicial examination.
Let me say this about learning, and I will talk about the first question here.
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✲ This article comes from "China Law Network" and is a lecture by Professor Liang Huixing on Beijing Science and Technology . Original title: Research on Several Issues in Civil Law
Liang Huixing Born on January 16, 1944, a native of Qingshen, Sichuan. A famous Chinese civil law scientist, member of the academic department of the Chinese Academy of Social Sciences, researcher of the Institute of Law of the Chinese Academy of Social Sciences researcher
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