Dissertation
Dissertation > Political, legal > Legal > UNIVERSITY > China and France

Relative Analysis of Legal Personality

Author LiGuoQiang
Tutor MaXinYan
School Jilin University
Course Civil and Commercial Law
Keywords Relativized Civil subject Conceptions of Ability Modern civil Legal capacity Abstraction German Civil Code Civil law French Civil Code Civil legal relationship
CLC D913
Type Master's thesis
Year 2004
Downloads 182
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As the foundation of the system of the civil law, the subject is set up likethis: First, the law creates a concept called legal personality, then it parts thelaw subject from the social subject, because the two subjects are different :onebelongs to the law category, the other belongs to the social one. Therefore, thelegislator is always choosing the subject, who can change into the law subject,then building a law order, which the subject system is the center. However, themeaning of the subject is unchangeable, and the former theory of thetraditional civil law and the legislation cannot explain it completely andperfectly. When the concept of the legal personality is formed as a relativelyintegrated, systematical set-up of the subject of the civil law after the countriesof the civil law appear, the subject system is dying. The writer tries his best tosolve two problems: the writer wants to make the inner logic of legalpersonality clearly in order that its concept can disclose each meaning of thesubject exactly; on the other hand, we should build a open and reasonablesystem of subject which can makes the law system and the law subject cometogether. Then the new subject system can call for the demand of theeconomic development to the theory of the civil law .The article is dividedinto four parts. The first part is “Revolution and relativity of legal personality”. First isthe legal personality in Roman period, and the relativity characters of itsappearance. Although the Roman Law is the origin of the system of moderncivil law, it doesn’t have the general characters of the modern civil law, and itscommodity exchange isn’t so prosperous as we think of, so the law at thisperiod is only a code to regulate the daily life between the citizens. If wecompare the concept of the legal personality of the modern civil law with theone at the period of Rome, there is no doubt that we can’t make a rationalconclusion, we may fall into the stray road caused by the economicdeterminism. So when we investigate the contents of the legal personality inthe Roman law, we can only consider it as the origin of the science of the civillaw. Then the writer discusses the change of the concept of the legalpersonality at the period of the modern statute law. By mainly comparing the 50<WP=56>“French Civil Law ”and the “German Civil Law”, The writer summarizes thecharacters of the relativity of the concept of legal personality .In modern times,the concept of the legal personality in law still reflects many characters ofrelativity, but people begin to equate the legal person with the real one,because of the abstract and general endowment coming from the legislationand the theory of law. The second part is “ The analysis of legal personality”. In the concept ofthe civil law, legal personality contains three concepts: capacity for right,capacity for conduct and capacity for duty. They reflected the fact that thesubject exists in the law, it is the elder who establishes this conception, andhowever, these concepts have changed their meaning in so many years. Thispart analyzes capacity for right, capacity for conduct and capacity for duty,and the problems they faced to. So it challenges the traditional meanings ofthese conceptions. The third part is “The foundation of relativity of legal personality”. Thewriter will explain the concept in order to make it adapts to the life better, thenthe writer will categorize the typical subject by these theories .The writerthinks if we adopt the function analysis we can explain its essence well. If wedo not put these concepts into the law reasoning logically, we can’t catch thereal meaning and function of those concepts. Firstly, the writer analyzes therelativity of the capacity for right. Here the writer gives it a new content; thewriter thinks the relativity of capacity for right should emphasize on the livingworld, and makes the subject which attendin

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