synonymLegal Theory(Legal theory) generally refers to the basic theory of jurisprudence (published by the Law Press in 1994)
Basic theory of law, also known as "legal theory", "general theory of law".Refers to the names of subjects, textbooks and courses on general theories of law used in China since 1980.From the founding of the People's Republic of China to the late 1950s, the basic theory course of law in the law department learned the Soviet model, called "the theory of state and law". After 1980, it was changed to "the basic theory of law". The content and system of its discipline have also changed greatly. It mainly studies the general theoretical issues of law, while the national issues are specifically studied by political science.The basic theory of law is an introductory basic theoretical discipline in the legal system to study general issues of lawLawThe discipline has methodological guiding significance.[1]
Chinese name
basic theories of law
Alias
Legal Theory
Author
Compilation of legal textbooks[2]
press
Law Press
Publication time
1994
ISBN
nine trillion and seven hundred and eighty-seven billion five hundred and three million six hundred thousand five hundred and thirty-one[2]
What is the significance of learning jurisprudence
Study jurisprudence for any advancedEducational LawFor professional students, there are generally three aspects of significance.
① It has universal guiding significance for learning other law disciplines or courses.
② Learning jurisprudence will help to improve their legal awareness and strengthen their democratic and legal concepts.
③ It will help us to further understand Marxist jurisprudence and distinguishMarxismThe principle difference between law and bourgeois law.
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Part I Basic Theory of Law: Requirements and Scope of Knowledge and Ability
Chapter I Characteristics of Law
Section 1 Meaning of Law and Law
1、 The Evolution of "Law" and "Law" in Chinese
2、 The distinction between law and law in Spanish
3、 Contemporary "Law" and the Use of "Law" in China
In China's contemporary legal theory, law has two meanings: broad and narrow.In China's modern legal system, law also has two meanings: broad and narrow.
Section 2 Formal Features of Law
1、 Regulation of behavioral relationship
The behavioral relationship is the object of legal regulation.Law adjusts social relations through its role in behavior.The object of legal regulation is both social relationship and behavior.For the law, it is impossible to adjust and control social relations without behavior control.Law is a norm that takes the behavioral relationship as the regulating object.
The normative nature of the law.The generality of the law.Legal norms are the main elements of law.The logical structure of legal norms includes behavior patterns, conditional assumptions and legal consequences;This is the most obvious sign of the normative nature of the law.The normative nature of law determines its efficiency.
2、 Formulated and recognized by national specialized agencies
Formulation and recognition are the main ways of law creation.The national nature of the law.Universality of law.
3、 Take the two-way provisions of rights and obligations as the adjustment mechanism
The content of law is rights and obligations.The guiding element of law.The guiding nature of law depends on that the legal rights and obligations are two-way.
4、 Enforced by procedure
The enforcement of laws is guaranteed by the national mandatory force.The force of law is based on legal coercive measures and sanctions.The coercive force of law is latent and indirect.Procedurality of law.Modern law only legitimizes the procedural standards of law, making the way of law implementation more scientific and rational.
Section 3 Essential Features of Law
1、 How to Understand the Essence of Law
Distinguish "essence" and "phenomenon";Define "content" and "form";Distinguish between "what is" and "what should be".
2、 The will and regularity of law
Law is the combination of will and law.But we cannot equate law with law.
3、 The class nature and commonness of law
Law is the means of class rule and social management.
4、 The Interest and Justice of Law
In the sense that it should be, law is a tool to adjust various interest relationships in order to achieve social justice.
Chapter II Legal History
Section I Introduction to Legal History
1、 Ancient law
Slavery andFeudalismTwo historical types of methods.They have common ground in many aspects, so they are often collectively referred to as "ancient law" in law.
2、 The Emergence and Development of Capitalist Law
The emergence of laws with capitalist factors.The development stage of capitalist law.
3、 The emergence of socialist law
The emergence of socialist type laws in China.
Section 2 Laws of Legal History
1、 The General Law of the Origin of Law
Follow the law of gradual change of productivity development process.The law of synchronous production with the country.The law from integration to differentiation with religion and morality.The emergence of law has gone through a long process from custom to customary law and then to written law.
2、 General Law of Law Development
The law of continuous progress.The development of law is determined by economic conditions.The replacement and inheritance of legal historical types.Rely on revolution or reform.
Section 3 Historical Tradition of Law
1、 Differences between Chinese and Western legal traditions
In legal philosophy and legal spirit.In terms of legal structure and legal culture.In judicial system and judicial procedure.In terms of legal form and judicial technology.In terms of legal nationality and internationality.
2、 Legal System and Historical Tradition
Legal system.Common law system.Civil law system.
3、 A Comparison of the Historical Traditions of the Two Western Legal Systems
The two legal systems can be compared from these aspects: the tradition of legal origin, the tradition of codification, the tradition of legal structure, the tradition of law application, and the tradition of litigation procedure.
Chapter III Legal Role
Section I Interpretation of Legal Function
1、 Object and essence of legal function
Human behavior and social relations are the two major objects of law.The law must adjust people's behavior if it wants to act on social relations.The essence of the role of law.
2、 Division of normative and social roles
The normative function of law is based on the normative characteristics of law.The social role of law is based on the nature, purpose and effectiveness of law.The object of the social role of law is social relations.Normative function is the means of social function, and social function is the purpose of normative function. Normative function has form and appearance, while social function has content and essence.
Section 2 The normative role of law
1、 Guiding role
2、 Evaluation role
3、 Predictive effect
Section 3 The Social Role of Law
1、 The social role of law
Affirm certain social interest relations in the form of law.Adjust the social interest relationship in real life by legal means.Sanctions are also an important way and means of the social role of law.Restraint power and rights, and promote the moderate operation of power and the exercise of rights according to law.The organization and guiding function of law.
2、 Class ruling role and social management role
Section 4 Limitations of Law
1、 The law tends to be conservative
The law has the disadvantage of not responding in time.The law cannot exhaust all social phenomena, so there will be omissions.Legal language brings about the problem that it is difficult to unify the standards for application.There is a potential danger in law from management to coercion and from control to suppression.The high cost of law enforcement.Law always depends heavily on its external conditions.
2、 The Limitation of Law and the Price of Rule of Law
Chapter IV Formulation of Laws
Section 1 The Concept and Characteristics of Law Formulation
1、 Concept of law making
2、 Characteristics of law making
3、 Legislative system
Section two basic principles of law making guiding ideology of law making.
1、 Scientific and democratic principles
2、 Principle of combining stability, continuity and timeliness
3、 Principle of constitutionality and unification of legal system
Section 3 Procedures for Formulating Laws
1、 Submission of legal proposals
2、 Deliberation of legal bills
3、 Voting on legal proposals
4、 Publication of laws
Section 4 Legal Effect
1、 Effect of law on people
2、 Spatial effect of law
3、 Time effect of law
Chapter V Elements of Law
Section 1 Legal Principles
1、 The Concept and Types of Legal Principles
Legal principles are the basis of legal norms or more stable principles and norms in law.
2、 Role of legal principles
First, it directly determines the basic nature, content and value orientation of the legal system;Second, it is an important guarantee for the internal coordination of the legal system;Third, it has a guiding role in legal reform;Fourth, it guides legal reasoning, legal interpretation and complements legal loopholes, which plays an important role in strengthening the regulatory capacity of the law.
Section 2 Legal Concept
1、 Meaning of legal concepts
Legal concept refers to the concept with specific legal significance formed by people's abstraction and generalization of some special legal terms often used on the basis of long-term legal research and legal practice.
2、 Classification of legal concepts
Section 3 Legal norms
1、 Concept and structure of legal norms
2、 Types of legal norms
Chapter VI Legal System
Section I Legal System Structure
1、 Public law and private law
Traditional legal system.Public law.Private law.
2、 The emergence of social law
In the modern legal system, there are economic law, labor law, social security law, and so on. They are the third structural element, which is a mixture of traditional public law elements and private law elements as the basic framework, and traditional public law and private law adjustment methods as the prototype. We call them social law.
3、 Difference of three structural elements
The three structural elements are different in terms of adjustment object, mode of action, legal standard, legal value, etc.
Section II Standards and Principles for Division of Legal Departments
1、 Concept of legal department
The relationship between legal departments, legal systems and legal norms.
2、 Standards for division of legal departments in China
The legal system is divided into different legal departments according to the two standards of social relations and adjustment methods.
3、 Principle of division of legal departments
Objective principle.Purpose principle.Principle of balance.Development principles.Principle of primary and secondary.
Section III Departmental Legal Structure of Contemporary Chinese Legal System
The position of constitution in modern legal system.Under the guidance of the Constitution, the contemporary Chinese legal system consists of three structural elements (public law, private law and social law).It is divided into several legal departments, mainly including political law, administrative law, criminal law, civil law, commercial law, kinship law, economic law, social security law, environment and resources law, etc.
Section 4 Classification of Laws
1、 Overview of classification of laws
The purpose of legal classification.
2、 General classification of laws
Written law and unwritten law.Substantive law and procedural law.Basic law and common law.General law and specific law.Domestic law and international law.
3、 Special classification of laws
Public and private law.Common law and equity.Federal law and federal membership law.
Chapter VII Legal Relations
Section I Concept of Legal Relationship
The concept and characteristics of legal relations.
Legal act refers to the act that is controlled and adjusted by law and has legal significance by taking law as the criterion of evaluation.Legal acts should be understood from the intrinsic aspects of motivation, purpose and cognitive ability.
2、 External aspects of legal acts
The legal act should be understood from the aspects of actions, means and effects.
Section 2 Legal Liability
1、 Concept and composition of legal liability
The constitution of legal liability includes five aspects: subject, fault, illegal act, damage fact and causality.
2、 Classification of legal liability
The classification of legal liability includes: public law liability and private law liability;Fault liability, no fault liability and fair liability;Job responsibilities and personal responsibilities;Property liability and non property liability.
3、 Attribution and Exemption
Section 3 Legal Sanctions
1、 Concept of legal sanctions
2、 Types of legal sanctions
The types of legal sanctions mainly include criminal sanctions, civil sanctions, administrative sanctions and unconstitutional sanctions.
Chapter IX Judicial Principles
Section 1 Nature of Judicial Power
1、 The Position of Judicial Power in the System of State Power
our countryNational institutional systemThe legislative power, executive power and judicial power of the three statutory sub relationship.Judicial power is a kind of power to protect the relevant laws of the country, mainly referring to the judicial power.The historical evolution of judicial power and administrative power from combination to separation.
2、 Judicial power is the right of judgment
Judicial power and administrative power are essentially independent. Justice is a kind of judgment, while administration is a kind of management.
Section 2 Judicial Features
1、 The passivity of justice
The executive power is active while the judicial power is passive.
2、 Judicial neutrality
3、 Formality of justice
Administrative power pays more attention to the substance of power result, but judicial power pays more attention to the formality of power process.
4、 Judicial stability
5、 The specificity of justice
6、 The legal nature of justice
The illegal law of the subject of administrative power and the legal nature of the subject of justice.
7、 The finality of justice
8、 Judicial negotiation
The non negotiation of the operation mode of administrative power and the negotiation of the operation mode of judicial power.
9、 Judicial insubordination
10、 The fairness and priority of justice
Section 3 Judicial System
1、 Reasons for Western Judicial Independence
2、 Institutional guarantee of judicial power
All characteristics of the judicial power require the independence of the judiciary in the system. At the same time, if the above characteristics are to be restored to the judicial power, it depends on the independence of the judiciary in the system.
Chapter X Legal Profession
Section I Characteristics of Legal Profession
1、 Concept of legal profession
2、 Characteristics of the legal profession
The professionalism of law and profession;Independence of legal professional institutions;The stratification of the legal profession and the ethics of the legal profession;Integration of legal profession.
Section 2 Subject of Legal Profession
1、 Judges
The status of judges;Qualification of judges;Independence of judges;The rights and obligations of judges.
2、 Prosecutor
The role of prosecutors;Duties of prosecutors: qualifications of prosecutors.
3、 Lawyer
Classification of lawyers;The functions of lawyers;Lawyer qualification.
Section III Legal Professional Ethics
1、 The Concept and Characteristics of Legal Professional Ethics
Legal professional ethicsLegal professional ethicsIt is a combination of publicity, professionalism and politics.
2、 Principles of legal professional ethics
Human nature principle;Rational principle;Human rights principles;The principle of judicial justice.
3、 Norms of legal professional ethics
Professional ethics standards for judges and prosecutors, and professional ethics standards for lawyers.
Chapter XI Legal Thinking
Section I Legal Awareness and Legal Thinking
1、 Legal awareness
The concept and classification of legal consciousness.
2、 Legal thinking mode
The concept and characteristics of legal thinking mode.
Legal thinking mode is a special kind of thinking, which refers to a thinking set formed by professional legal groups to abstract and summarize the thinking trend of people according to the legal quality. It is a method of understanding social phenomena affected by legal awareness and operating methods.
The characteristics of legal thinking mode mainly include: legal thinking is a kind of normative thinking;It is a way of thinking about all behaviors from the standpoint of evil human nature;It is a realistic way of thinking to seek benefits.
Section 2 Identification of Legal Sources
1、 Concept of source of law
The origin of law refers to the professional legal groups such as judges' recognition of what kind of legal materials have legal effect, which includes the theory of source of law and the form of legal expression.
2、 Identification of legal sources
3、 Main manifestations of legal sources
The main forms of the source of law are: statutory law, case law, customary law, international treaties, jurisprudence, and the concept of fairness and justice.
Section 3 Legal Reasoning and Legal Interpretation
1、 Legal reasoning
Legal reasoning is a kind of logical thinking activity that uses scientific methods and rules to provide legitimate reasons for the application of law on the premise of the two known judgments of law and fact.
Legal reasoning includes formal reasoning and dialectical reasoning.
2、 Concept of legal interpretation
The concept, waiting, principle and method of legal interpretation.
Legal interpretation refers to the explanation of the legal significance of various legal materials made by the competent state organs according to certain standards and principles and in accordance with legal functions and procedures.
Legal interpretation should have the characteristics of constitutionality, specialization and relevance of pending cases.
The principles of legal interpretation mainly include basic principles and specific principles.
3、 Methods of legal interpretation
Methods of legal interpretation, includingLiteral interpretation, historical interpretation, system interpretation, purpose interpretation.
Chapter XII The Rule of Law
Section I Definition of the Rule of Law and the Rule of Law Country
1、 Concept of the rule of law
The concept of rule of law and its connotation;The difference between rule by law, rule by man and rule by virtue,
2、 The concept of a country under the rule of law
3、 The Subject, Object and Standard of Rule of Law
Section 2 Concept of Rule of Law
1、 The concept of good law and evil law
2、 Supremacy of law
3、 The ruling concept of law
4、 Cultural concept of rights
Section 3 Principle of Rule of Law
1、 The principle of controlling power through law
2、 The principle of unity of power and responsibility
（1） The general theory of law.It mainly includes: the concept, characteristics, functions and classification of law;Historical conditions for the emergence of law;The relationship between law and economy, state, science and technology.
（2） The theory of capitalist law.It mainly includes: the emergence and characteristics of capitalist law;The difference between continental law system and common law system;The origin of capitalist law;capitalistic legal systemPrinciples, etc.
（3） The theory of socialist law.It mainly includes: the origin of socialist law;Law and the Party's policiesSocialist moralityRelationship;The concept and types of legal norms;The concept of legal relationship and its elements;The concept of legal system;Classification of legal interpretation;The Concept, Requirements and Origin of the Application of Law
Then;Legal retroactivity;Legal supervision, etc.
3、 Examination oriented guidance
There are many basic concepts involved in the basic theory of law, many knowledge points that are easy to confuse, and no corresponding legal provisions to help candidates strengthen
Understand, so it is difficult to review this part.When reviewing, examinees should focus on a wide range of confusing and complex concepts, and compare them to remember.The basic theory of law examination questions examine the examinees' basic skills of law. Only by strengthening their memory and achieving a solid foundation can they be prepared to fight.
The basic theory of law examination questions mainly include judgment, choice and simple answer. In 1998 and 1999, only choice questions were taken, and it is predicted that there will be no change in 2000.When examinees are doing questions, no matter what type of question, they should first read the questions and see the content of the questions clearly;Then analyze the questions to find out what the examination site is;Re basis
Answer the questions with your own knowledge.
2009 Comprehensive Law Review Materials - Basic Theory of Law
Section 1 Legal Overview
（1） Concept of law
1. Concept of law
Law is the embodiment of the will of the ruling class. It is the general name of the code of conduct formulated or recognized by the state and guaranteed to be implemented by the state's coercive force.
2. Concept of law
Formally, law has broad and narrow meanings.In a broad sense, law has the same meaning as "law", that is, it refers to the whole of "law", and generally refers to all normative documents of the country.The narrow sense of law only refers to one form of expression of law, which in China only refers toNational People's CongressAnd the normative documents formulated by its Standing Committee.
（2） Basic characteristics of law
1. Law is a system of behavior norms.
As a code of conduct system, law has the following two basic characteristics:
First, it is normative and universal.
Second, it has a strict structure and hierarchy.
2. The law is a code of conduct system formulated or recognized by the state.
Formulation or recognition are two basic forms of national legal norms.Formulation refers to the creation by the state organs within the scope of their functions and powers in accordance with legal proceduresNormative legal documentsGenerally speaking, the activity of "Li" refers to the process of creating a written law.Recognition refers to the recognition by the state that certain existing rules of conduct in society have legal effect.The law recognized by the state mainly refers to case law, customary law and other unwritten laws.Whether enacted or approved, laws are inextricably linked with state power, reflecting the nature of the state will of law.
3. The law is a universally binding code of conduct system that is guaranteed to be implemented by the national coercive force.
The national coercive force includes the military, police, prisons, courts and other national violence organs.
4. Law is a system of behavioral norms that stipulates people's rights and obligations as the main means of adjustment.
The rights and obligations stipulated by law not only refer to the rights and obligations of citizens, social organizations and the state, but also include the functions and duties of state organs and their public officials.
（3） Role of law
1. The normative role of law
2. Social role of law
3. The role of China's laws in establishing and improving the socialist market economy system
（4） Classification of laws
1. Written law and unwritten law.
2. Substantive law and procedural law
3. Basic Law and Common Law
4. General law and special law
5. Domestic law and international law.
6. Public and private law.
Section 2 Legal norms
1、 Concept of legal norms
Legal norms are behavioral norms formulated and recognized by the state, reflecting the will of the ruling class, and guaranteed to be implemented by the state's coercive force.Socialist legal norms refer toSocialist countryA code of conduct formulated or recognized to reflect the will of the broad masses of the people under the leadership of the working class and guaranteed by the coercive force of the socialist country.
2、 Structure of legal norms
The structure of a legal norm usually refers to the elements of a legal norm and the logical relationship between these elements.The structure of legal norms can be understood from different levels, namely, the internal logical structure and formal structure of legal norms.
（1） Complete Legal Norms -- The Internal Structure of Logical Norms
(1) Assumptions
(2) Processing
(3) Sanctions are also called legal consequences.
（2） The formal structure of legal norms -- the structure of mandatory norms
Legal norms are different from legal provisions or normative documents. Their three elements can be stipulated in one legal provision or normative document at the same time or in different legal provisions or normative legal documents respectively, but these three elements are logically necessary for any legal norm.
（3） Types of legal norms
1. According to the different adjustment objects of legal norms, legal norms can be divided into different departmental legal norms, such as criminal legal norms, civil legal norms, etc.
2. According to the nature of legal norms, legal norms can be divided into authorization norms, obligation norms and prohibition norms
3. According to the degree of certainty of legal norms, legal norms can be divided into deterministic norms and non deterministic norms.
4. Legal norms can be divided into mandatory norms and arbitrary norms according to the scope and degree of the provisions and limits of legal norms on people's behavior.
Section 3 Sources of Law
（1） Concept of source of law
The source of law refers to the way of legal creation and external forms of expression.The concept of legal source includes four meanings: first, the nature and level of the legal norm creating organ;Second, the external manifestation of legal norms;Third, the effectiveness level of legal norms;Fourth, the regional effect of legal norms.
The origin of law is determined by the nature of law, but it is also affected by such factors as the state system of government, the stage of social development, ethnic groups and historical traditions.Therefore, laws with the same essence can have different creation methods and external manifestations.The legal sources that have existed in the world history mainly include customary law, religious law, case law, normative documents, international practices, international treaties, etc.The source of law does not include those made by state organsNon normative legal documents, such as judgment, arrest warrant, marriage certificate.(It only has legal effect, but is not the source of law.)
（2） Types of Legal Sources in China
1. Constitution.
2. Law.
3. Administrative regulations.
4. Local regulations.
5. Department regulations
6. Local government regulations
7. Autonomous regulations and separate regulations.
8. Laws of the Special Administrative Region.
9. Military laws and regulations.
10. International treaties and practices.
（3） Systematization of normative documents
1. Compilation of regulations.
The compilation of regulations, also known as the compilation of laws, refers to the systematic arrangement and compilation of normative documents according to certain purposes or standards.
2. Codification
Codification refers to the activity of reviewing, modifying and supplementing the existing legal norms that are stipulated in different normative documents but belong to a certain department law, and preparing a unified department code with a specific structure.Its characteristics are as follows: First, the codification of the code is not only to sort out and classify the existing legal norms, but also to review their contents, delete the parts that are no longer applicable, supplement the necessary new norms to fill the gaps, modify the contradictory or repetitive contents, and coordinate the relationship between the norms,So as to form a unified whole of legal norms of a certain department with internal links starting from some common principles.Second, codification is an important national legislative activity, which can only be carried out by the national legislature.
3. Clear up laws and regulations.
The clearing of laws and regulations refers to the special activities in which the relevant state organs, within the scope of their functions and powers, review the normative legal documents within a certain scope in accordance with certain methods to determine whether they continue to apply or whether they need to be modified, supplemented or abolished.
（4） Effect of Chinese law
1. Concept and scope of legal effect
Legal effect refers to the general binding force and scope of application of normative documents, and refers to where, when and for whom the law is effective.
(1) The spatial effect of law - local.
(2) The effect of law on people - people.
First, all Chinese citizens in our territory are subject to our laws.Second, foreigners (including stateless persons) are also subject to the laws of our country, except for those specially stipulated by laws (such as those enjoying diplomatic privileges and immunities).Third, our citizens should also apply our laws in principle outside our territory. If there are special provisions in the law, they should follow the law.Fourth, if foreigners infringe upon the rights and interests of our country or citizens or have legal relations with our citizens, legal persons and other organizations outside the territory of our country, our laws can also be applied.
(3) Time effect of law.
There are several situations when the laws of our country take effect: First, they take effect from the date of promulgation, which is the case for a large number of laws in our country.Second, some laws stipulate specific implementation or effective date.Third, the effective date of some laws is not stipulated in the law itself, but announced in the order issuing the law.Fourth, the regulations themselves stipulate that the effective time depends on the effective time of other laws and regulations.Fifthly, after some laws are formulated, they will be put into trial implementation for a period of time. After summing up experience, they will be supplemented and revised before being formally promulgated.Such laws still have legal effect during the trial period.
The expiration time of Chinese laws is as follows: First, from the date of promulgation and implementation of the new laws, the corresponding old laws will be abolished automatically.Second, the new law replaces the old law with basically the same content, and clearly stipulates the expiration date of the old law in the new law.Third, due to the development and change of the situation, the original law loses its existence conditions because the adjusted social relations no longer exist or the historical tasks have been completed, so it automatically becomes invalid.Some laws stipulate the effective time limit, which will expire.Fourth, the state organ that has the power to enact laws issues special resolutions and orders, announcing the amendment or repeal of some laws enacted by it, which leads to the invalidation of the laws.
（2） Rank and award of legal effect
1. The effective rank of law refers to the effective position and rank of normative documents formulated by different state organs in the system of legal sources.If they are in different or the same position and level in the hierarchy of law, their effectiveness is also different or the same;Therefore, it can be divided into superior method, inferior method and apposition method.The superior method refers toOther normative documents, those normative documents that are in a higher effective position and level in the hierarchy of law.Subordinate laws refer to those normative documents that are in a lower effective position and level in the hierarchy of laws compared with other normative documents.The apposition method refers to those normative documents that are in the same effective position and level in the hierarchy of laws.
The hierarchy of law in China: the lower law shall not conflict with the provisions of the upper law;The laws of apposition shall have the same effect and shall be implemented within their respective limits of authority.
2. The effect of general law and special law, new law and old law.
The principle of "special law is superior to general law" applies in legal principle.
Section 4 Legal System
1、 Concept of legal system
The legal system refers to the organic unity of all existing legal norms in a country on the basis of classification and combination into different legal departments.The legal norms regulating different aspects of social relations are divided into different legal departments, but they are a unified whole with common principles, spirits and conceptual systems. They are coordinated in content and linked in effectiveness, and jointly achieve the overall tasks and value objectives of the law.
2、 Legal department and its division
（1） Concept of legal department
Legal department, also called departmental law, refers to the sum of similar legal norms divided according to certain standards and principles.
（2） Division of legal departments
Legal departments divide legal norms according to certain standards, which include the following two aspects:
The first criterion is the object of legal regulation.The object of legal adjustment is social relations, so social relations are the primary standard for dividing legal departments.
The second standard is the way or means of legal adjustment.Different laws adopt different adjustment methods for similar social relations.For example, civil law and criminal law both regulate property relations and personal relations.However, the civil law takes self regulation as the main way, while the criminal law takes compulsory intervention as the main way. The civil law requires property compensation for damage, while the criminal law imposes severe personal punishment on offenders.
3、 China's legal system
（1） Constitutional branch
（2） Administrative Law Department
（3） Criminal law department
（4） Civil and Commercial Law Department
（5） Economic law department
（6） Environmental and Resource Protection Law Department
（7） Labor and Social Security Law Department
（8） Military Law Department
（9） Procedural Law Department
Section 5 Formulation of Laws
1、 Concept and characteristics of law making
（1） Concept of law making
Law making, also known as legislation, is generally understood in both broad and narrow senses.In a broad sense, law making generally refers to the activities of the relevant state organs to formulate, modify, supplement and repeal normative documents according to legal procedures within the scope of their statutory functions and powers.The narrow sense of law making specifically refers to the activities of the highest authority of the state (or the Congress, the national legislature, etc.) to formulate, modify, supplement, and repeal basic laws (or codes) and laws——In China, it refers to the National People's Congress and its Standing Committee.
（2） Characteristics of law making
1. Legislation is one of the forms of activities carried out by state organs in accordance with their statutory functions and powers.
2. Legislation is an activity carried out by state organs in accordance with legal procedures.
3. Legislation is the activity of formulating, modifying, supplementing and abolishing normative documents.Law making is a comprehensive activity, which includes not only the activities of producing new normative legal documents, but also the activities of modifying, supplementing and abolishing existing normative documents.These activities may occur separately or simultaneously in the legislative process, such as both amendment and abolition.
（3） Stage of law making
The law making activity can basically be divided into three mutually independent and related stages, namely, the preparation stage, the establishment stage and the improvement stage.
1. Preparation stage of law formulation.It can also be called the drafting stage of law making.At this stage, the legislative proposals put forward are included in the drafting work, which mainly refers to the various work carried out around the drafting of normative documents, such as conducting relevant investigations and studies, drafting specific legal provisions, making corresponding amendments and supplements to them according to the requirements of legislative technology, consulting with relevant organs, organizations and personnel, and soliciting opinions,The preparatory stage will end when the draft is submitted to the organ that has the power to formulate laws for deliberation and discussion.
2. The establishment stage of law making.It can also be called the passing stage of law making.In this stage, it mainly revolves around the four related procedures, namely, the proposal of legal cases;Deliberation and discussion of legal cases;Voting on legal bills;Publication of laws.The so-called "legislative procedure" mainly refers to the process and steps of this stage.
3. Perfection stage of law formulation.It can also be called the subsequent stage of law making.In this stage, the main contents of legislative activities usually include: legislative interpretation;Amendment and supplement of the enactment law of the detailed rules for the implementation of the Law;The abolishment of law;Compilation of laws;Codification.
2、 Principles of China's law making
（1） Seek truth from facts and proceed from reality
（2） Adhere to the combination of principle and flexibility
（3） Maintain the seriousness, stability and continuity of the law
（4） Adhere to the mass line and the combination of the Party's leadership and the masses
（5） Draw on and learn from the legislative experience of China's history and foreign countries
3、 China's legislative system
（1） Legislative competence of the highest organ of state power
（2） Legislative competence of the highest administrative organ of the state
（3） Legislative competence of the organs subordinate to the highest administrative organ of the state
（4） Provinces, autonomous regions, municipalities directly under the Central Government andLarger citiesLegislative authority of the authority of
（5） Legislative competence of the administrative organs of autonomous regions, municipalities directly under the Central Government and larger cities
（6） Legislative authority of the organs of power in national autonomous areas
（7） Provisions of the Legislative Law on Authorized Legislation
4、 The procedure of making laws in China
（1） Bring a legal case
（2） Deliberate legal cases
（3） Pass a legal case
（4） Publication of laws
Section 6 Legal Interpretation
1、 The Concept and Function of Legal Interpretation
（1） Concept of legal interpretation
Legal interpretation is a special legal activity to understand and explain the content and meaning of legal norms.The purpose of legal interpretation is to reveal the will of legislators embodied in legal norms and unify the understanding of certain legal norms, so as to ensure the accurate and unified implementation of legal norms throughout the country.Legal interpretation is an important link in strengthening the socialist rule of law.
（2） The role of legal interpretation
The history of legal development shows that legal interpretation is very necessary in the formulation and implementation of laws, especially in the application of laws.This is because:
First, in the process of law making, although it is required to formulate norms comprehensively and clearly, legal norms can only be abstract and generalized rules of conduct, that is, they can only specify general conditions of application, modes of conduct and legal consequences, and it is impossible and should not make exhaustive provisions on all issues.In the process of implementing the law, we encounter individual and special problems, that is, we have to make decisions to deal with various specific and diverse behaviors, events, relationships, etc.Therefore, to apply general legal provisions to specific legal practice, it is often necessary to make necessary interpretations of legal norms.For example, vehicle.
Second, legal norms are relatively stable and stereotyped rules, while social life is always changing.Therefore, in order to apply relatively unchanged legal provisions to the changing legal reality, it is often necessary to make necessary interpretations of legal norms.Only in this way can we ensure that new situations and problems are dealt with according to the basic principles, spirit and provisions of legal norms, and can we ensure the stability of the law.
Third, legal norms are formulated by different state organs and belong to different legal departments.Generally speaking, the various legal norms of a country should be unified, interrelated, complementary, and mutually restrictive.But in real life, there will also be contradictions and conflicts of one kind or another between various legal norms formulated by various state organs and belonging to different legal departments, and there will also be unclear boundaries or gaps, which often need to be resolved through legal interpretation.
Fourth, legal norms are expressed in strict and specialized legal concepts and terms, sometimes with different meanings from real life terms, which are difficult for people to understand.Moreover, people often have different understandings of the same legal norms due to their different situations, such as occupation, age, educational level, education level and so on.All these need authoritative legal interpretation to unify people's understanding.Such as subject matter.
Fifth, legal interpretation is often the starting point of new legal norms.In other words, it is also essential to absorb useful ideas, theories, rules and experience from the existing corresponding legal interpretations when modifying or supplementing the original legal norms, or even reformulating new legal norms.As explained by the two courts.
2、 Types of legal interpretation
（1） According to the different interpretation subject and legal effect, legal interpretation can be divided into formal interpretation and informal interpretation. Formal interpretation, also known as authoritative interpretation or official interpretation, refers to the legally effective interpretation made by state organs within the scope of their functions and powers.Formal interpretation can be divided into legislative interpretation, judicial interpretation and administrative interpretation.
1. Legislative interpretation.In a broad sense, legislative interpretation refers to the interpretation of the legal norms formulated by the relevant state organs.
2. Judicial interpretation.Judicial interpretation refers to the interpretation of relevant issues of specific application of legal norms by national judicial organs in the process of law application.In China, judicial interpretation can be divided into two types: one is trial interpretation, which meanssupreme people 's courtExplanations of issues related to the specific application of law in judicial work.This interpretation is of great significance to local people's courts at all levels andSpecial People's CourtIt has universal binding force.The second is procuratorial interpretation, which meansSupreme People's ProcuratorateInterpretations of issues related to the specific application of law in procuratorial work.This interpretation has universal binding force on local people's procuratorates at all levels and special people's procuratorates.
3. Administrative interpretation.Administrative interpretation refers toState administrative organsExplanations on issues related to the specific application of law when handling administrative affairs within the scope of its functions and powers according to law.In China, administrative interpretation can be divided into two types: the first is the State Council's interpretation of how to apply laws and the departments under the State Council (must pay attention to) how to apply administrative norms;The second is the local people's government's interpretation of how to specifically apply administrative regulations and local regulations.
Informal interpretation is also called unauthorized interpretation.It refers to the interpretation of legal norms made by unauthorized state organs, social organizations or individual citizens without legal effect.Informal interpretation can be divided into two types: one is arbitrary interpretation, which refers to the interpretation of laws and regulations by citizens, parties, defenders, agents, social organizations or unauthorized state organs (not all state organs' interpretations are formal interpretations) according to their own understanding.The other is theoretical interpretation, which refers to the interpretation of legal norms made by relevant experts and scholars in academic research, legal works, legal education and legal publicity.
（2） According to the different methods of legal interpretation, legal interpretation can be divided into grammatical interpretationSystematic explanationHistorical interpretation and logical interpretation
（3） According to different standards of legal interpretation, legal interpretation can be divided into literal interpretation, restrictive interpretation and extended interpretation
3、 Legal Interpretation in China
Section 7 Enforcement of Laws
1、 Concept and basic form of law enforcement
Law enforcement refers to the activities in which the requirements of legal norms are implemented and realized in social life.It includes two basic forms: first, it refers to the activities of state organs and their staff to implement and apply laws, so as to implement and realize the requirements of legal norms.Second, all state organs, armed forces, political parties, social groups, enterprises and institutionsState organ staffAnd all citizens consciously abide by the law, so that the requirements of legal norms can be realized.The former is called application of law, and the latter is called compliance with law.
2、 Application of law
（1） The principle of taking facts as the basis and law as the criterion
（2） The principle that all citizens are equal before the law
（3） The principle of judicial organs exercising their functions and powers independently and impartially according to law
3、 Legal compliance
1. Concept and significance of legal compliance
Law abiding means that all state organs and armed forces, political parties and social organizations, enterprises and institutions, and all citizens must abide by the provisions of the law and act in strict accordance with the law.
In China, the significance of abiding by the law is that it is conducive to fighting against various illegal and criminal acts and consolidatingpeople 's democratic dictatorshipIt is conducive to social stability and the development of reform, opening up and economic construction.Therefore, all state organs, enterprises and institutions, social organizations, political parties and all citizens must conscientiously abide by the law and act in strict accordance with the law.
（2） Definition, constitutive conditions and classification of illegality
Illegality refers to the behavior of citizens or organizations with certain subject qualification that is harmful to society and should be investigated according to law due to subjective fault.In a broad sense, illegality refers to all illegal acts, including crimes, while in a narrow sense, illegality refers to general illegal acts, excluding crimes.
To constitute illegality, the following conditions must be met at the same time: (1) illegality must be an act that people violate the law, that is, the illegality of the act itself, including acts and omissions.Thought without action does not constitute an offence.(2) Violation of the law must be an act that infringes on the social relations and social order protected by the law to varying degrees, and must be an act that causes certain harm to society, that is, the social harmfulness of the result of the act.If the act does not violate the social relations and social order protected by law, and has no social harmfulness, it does not constitute an offence.(3) The subject of an illegal act must be a person who has reached the legal age and has legal capacity for responsibility and conduct, including natural persons, legal persons and other organizations.(4) The violation must be intentional or negligent, that is, the perpetrator must have subjective faults.Intentional fault means that the perpetrator knows that his behavior will cause harm to the society, and hopes or allows such harm to happen, thus constituting a violation of the law.The negligent fault refers to the fact that the wrongdoer should have foreseen that his or her behavior might cause harm to society, but he or she failed to do so because of negligence, or he or she had foreseen and readily believed that it could be avoided, so that harmful consequences would occur, thus constituting a violation of the law.
According to the specific nature, degree of harm and legal liability of the illegal act, the illegal act can be divided into: (1) civil illegal act, which refers to the act that violates the civil law and should be punished by the civil law.(2) Administrative illegality refers to the behavior that violates administrative regulations and should be punished by administrative laws.(3) Criminal illegality, also known as crime, refers to the behavior that violates the national criminal law and should be punished.(4) Unconstitutional refers to acts that violate the national constitution and other constitutional documents.Including the situation that some laws and regulations formulated by state organs contradict the Constitution, and the activities of state organs violate the provisions of the Constitution——Unconstitutional review system.
Section 8 Legal Relationship
1、 Concept and characteristics of legal relations
Legal relationship refers to the legal relationship of rights and obligations formed in the process of regulating the subject's behavior by legal norms, and is a special social relationship generated in the implementation of legal norms.
Legal relations have the following characteristics: (1) Legal relations are ideological and social relations, social phenomena formed through the will of the subject, and belong to the category of superstructure.(2) Legal relations are social relations generated according to legal norms.Generation of legal relationshipThe premise must be the existence of legal norms that regulate and regulate this social relationship.(3) Legal relationship is a social relationship that reflects legal rights and obligations, mainly reflecting the rights and obligations that the subject should actually realize according to legal norms.(4) Legal relationship is a social relationship guaranteed to be realized by the compulsory force of the state.The subjects become the bearers of legal rights and obligations, and the state has the responsibility to support and ensure the realization of their rights and the performance of their obligations by using the national coercive force.
2、 Subject of legal relationship
The subject of legal relationship refers to the natural person, legal person, social organization and state that participate in legal relationship, that is, enjoy rights and undertake obligations.The party enjoying the rights is called the obligee, and the party undertaking the obligations is called the obligor.The main subjects of legal relations in China are: (1) natural persons.It includes Chinese citizens, foreigners and stateless persons.(2) Legal person.Including enterprise legal person, state organ legal personInstitutional legal personandSocial organization legal personEtc.(3) An unincorporated body (temporarily formed).Such as the party of the class action.Such as public interest litigation.(4) Country.The state is the subject of international law, civil law, administrative law and other legal relations.
The subject of legal relationship should have two kinds of subject capacity: (1) right capacity refers to the qualification of the subject of legal relationship to enjoy rights and undertake obligations according to law.(2) Capacity of conduct refers to the qualification that the subject of legal relationship can actually exercise rights and assume obligations according to law with his own behavior.
The object of legal relationship refers to the object or object of the rights and obligations between the subjects of legal relationship.It is not necessarily something that can be seen or touched.The object of legal relationship can be divided into: (1) thing.The object refers to the object or natural force that exists objectively, can meet the needs of the subject of legal relationship, and can be controlled by the subject.The object is the object of various legal relationships related to property, including natural objects, artificial objects, etc.(2) Behavior.There are two ways of behavior: one is to act, which is the positive behavior of the subject;The second is inaction, which is the negative behavior of the subject.(3) The intangible wealth associated with the human body, also called spiritual wealth, includes the intellectual achievements obtained by the subject of legal relationship engaged in mental labor.Such as works, inventions, trademarks, designs, utility models, and the right of personality and identity associated with the person.The former mainly includes the right of name, the right of name, the right of honor, the right of reputation, the right of life, the right of physical health, the right of freedom, the right of portrait, etc;The latter mainly includes the right of guardianship and the right of kinship.
4、 Content of legal relationship
The content of legal relationship refers to the legal rights and obligations between the subjects of legal relationship.Such rights and obligations are stipulated by legal norms and recognized and protected by the state.
Legal rights refer to the interests or freedom of behavior that the law gives to the subject of legal relations.The structure of legal rights is: (1) The obligee has the right to do or not do certain acts.(2) The obligee has the right to require others to do or not to do certain acts.(3) The obligee has the right to request state organs to protect his rights.However, it should be noted that citizens should not infringe upon the lawful rights of other citizens when exercising their own rights.
Legal obligation refers to a certain responsibility or behavior boundary that the legal relationship subject must perform according to the law.The structure of the legal obligation is: (1) it is a certain behavior, that is, the obligor must make some positive behavior according to the requirements of the obligee or the provisions of the law, for example, adult children have the obligation to support their parents.(2) It is not a certain act, that is, the obligor shall not perform the act prohibited by law.(3) The compulsory measures of the receiving country, that is, when the obligor commits an illegal act, it has the obligation to accept the national laws or sanctions.
5、 Legal fact
（1） Concept of legal facts
The legal basis of legal relations is legal norms. Without legal norms, corresponding legal relations will not be formed.However, the provisions of legal norms are only a hypothetical model of the relationship between the rights and obligations of the subject, not the actual legal relationship itself.The emergence, change and elimination of legal relations also need direct conditions, which are some events and behaviors occurring in society.Therefore, any objective situation or phenomenon that can actually occur in social life and is stipulated by law and can lead to the generation, change and elimination of legal relations is a legal fact.
（2） Classification of legal facts
1. Legal facts can be divided into legal events and legal acts according to whether they are transferred by the subjective will of people
2. Legal facts can be divided into confirmed legal facts and excluded legal facts according to the way they exist
Section 9 Legal Responsibility and Legal Sanctions
1、 Concept, characteristics and classification of legal liability
（1） Concept of legal liability
Legal liability has broad and narrow meanings.The broad sense of legal responsibility is synonymous with legal obligations, such as every citizen has the responsibility (obligation) to abide by the law, and the people's court has the responsibility (obligation) to protect the legitimate rights of the parties.The narrow sense of legal responsibility refers specifically to the mandatory and punitive legal responsibility that the violator must bear for his or her own illegal acts.This kind of legal responsibility is closely related to illegal acts, that is, all those who have committed illegal acts must bear corresponding legal responsibilities to the state and victims.This is a kind of prosecuting responsibility, and it is precisely this responsibility that we discuss here.
（2） Characteristics of legal liability
Legal responsibility is different from other social responsibilities, such as political responsibility, moral responsibility, etc., and has the following main characteristics: (1) Legal responsibility is related to illegal acts, and only those who violate the law can be investigated for legal responsibility;Violation of the law is the basis for assuming legal responsibility, does not constitute violation of the law, and does not bear punitive responsibility.If the violation is not constituted due to no fault, but damage is caused, it should also bear certain compensatory responsibility.(2) Legal liability is mainly the basis for certain state organs to impose legal sanctions on offenders on behalf of the state, and there should be clear and specific provisions in the law.(It is not a crime if there is no express provision in the law) For different illegal acts, the legal responsibilities stipulated by the law are different, and the violators only bear the corresponding responsibilities stipulated by the law for their illegal acts.(3) Legal responsibility reflects the relationship between the violator and the state organs, which means that certain state organs should identify the nature, characteristics and circumstances of illegal acts on behalf of the state;It has national compulsion and is guaranteed by national compulsion.Therefore, legal responsibility can only be investigated by national judicial organs and special organs authorized by the state, and no other organization or individual has this power.(4) Legal responsibility also means the negative reaction and condemnation of the state to illegal acts.
（3） Types of legal liabilities
(1) According to the nature and harm of illegality, legal liability can be divided into criminal liability, civil liability, administrative liability and unconstitutional liability.That is, criminal liability shall be borne for criminal violations, civil liability for civil violations, administrative liability for administrative violations, and unconstitutional liability for unconstitutional violations.
(2) Legal liability can be divided into fault liability, no fault liability and fair liability according to whether the person who bears the responsibility has subjective fault or not.
(3) According to the different identity and name of the perpetrator when he or she commits an illegal act, legal responsibility can be divided into duty responsibility and personal responsibility.The so-called duty responsibility refers to the legal responsibility borne by the organs and organizations to which the actor belongs when he or she violates the law by carrying out activities in the name of official status.For example, the liability for damages caused by the staff of state organs when performing their official duties.The so-called personal responsibility refers to the legal responsibility borne by the individual when the perpetrator violates the law by carrying out activities in his own identity or name.For example, the liability for damages caused by the staff of state organs when engaging in non official activities.
(4) According to the different contents of liability, legal liability can be divided into property liability and non property liability.The so-called property liability refers to the legal liability with the content of property punishment, such as the payment of liquidated damages in the civil law.The so-called non property liability refers to the legal liability with personal, personality, behavior and other punishments as the content, such as the apology in the civil law.
2、 Principle of assuming legal responsibility
In China, the principles of legal liability mainly include:
First, adhere to the principle of legality of legal responsibility
Second, adhere to the principle of fairness of legal responsibility
Third, we should adhere to the principle of rationality of legal responsibility
Fourth, we should adhere to the principle of timeliness of legal responsibility
Fifth, we should adhere to the principle of the inevitability of legal responsibility.
In a word, when dealing with specific cases, the fairness and rationality of legal responsibility should be the manifestation of its legitimacy, and the timeliness and inevitability of legal responsibility should also be based on legitimacy.
3、 Mitigation and Exemption of Legal Liability
The relief and exemption of legal liability is commonly referred to as exemption.Exemption is premised on the existence of legal liability, which means that although the violator has violated the law in fact and has the conditions to bear legal liability, due to the provisions of some laws, the violator can be partially or completely exempted from legal liability.
In China's legal provisions and practice, the conditions and circumstances of exemption mainly include:
(1) Limitation exemption.
(2) No action or exemption.
(3) Voluntary surrender and meritorious service exemption.
(4) Remedial Disclaimer.
(5) Agreement or agreed exemption.
4、 Concept and classification of legal sanctions
Legal sanctions refer to the punitive measures taken by national judicial organs and special organs authorized by the state to punish offenders according to their legal responsibilities.
Legal sanctions are compulsory measures taken by the state to protect and restore legal order, including measures to restore rights and punitive measures taken against those who constitute violations of the law and commit crimes.
According to the nature of the legal liability that the violator should bear and the different subjects of legal sanctions, legal sanctions can be divided into criminal sanctions, civil sanctions and administrative sanctions.
