Author: Sun Xianzhong
Abstract: This paper proposes a problem-oriented research method summarized by the author from his decades of experiences of law research, legal education and participation in national legislation. Law, especially civil law, is a kind of practical social science. Legal theory should be enriched and examined by legal practice. This approach is identifying problems in practice, especially problems faced by China today, problems discovered through practice, and problems of major importance, and then proposing effective solutions in light of social realities and in accordance with legal theories correspondingly. The followings are examples in which I applied this method in the study on civil law: (1) I found out that the General Principles of the Civil Law had been hollowed out and couldn’t play a fundamental and guiding role in civil legal system and submitted NPC motions and legislative suggestions including re-legislation of the General Principles of the Civil Law as the first step and codification of civil code as the second step, which contributed to the legislative program of Civil Code. (2) I found out that the essential defect in the theory and institution of juristic act in China was denying the right of self-determination of civil subjects resulting from the influence of the civil law of the former Soviet Union and, on this basis, proposed the solution of adhering to the principle of party autonomy and taking declaration of will as the core factor of juridical acts. (3) I found out that "multi-level registration" and "multi-departmental registration" were the serious defects in China's real estate registration system and suggested to establish "Five Unification Principles" of real estate registration on the basis of the principle of publication of real rights, which led to the establishment of a unified real estate registration system in China. (4) I found out that the alteration rules of real rights, which were built on derivative acquisition theory of traditional civil law, was unable to distinguish between the legal consequences of creditor’s rights and those of property rights and proposed the principle of distinction so as to essentially improve the theories and rules of analysis and judgment of real rights. (5) I found out that the public ownership in China had been influenced by "oneness and uniqueness of state ownership" theory, and couldn’t distinguish between investor's rights and ownership rights and proposed a solution to rebuild the property rights system of public-owned enterprises on the basis of the structure of "equity-ownership" under the government investment theory. All the above legislative suggestions were embodied in the Chinese Civil Code. Problem-oriented research approach has thus become a reasonable and feasible legal research method.
Key Words: problem awareness; civil law research; juristic act; real estate registration; public ownership
Author: Sun Xianzhong, a member of Chinese Academy of Social Sciences; a first-grade research fellow at CASS Institute of Law; and a distinguished Professor at the University of Chinese Academy of Social Sciences.
Source: 5 (2023) China Law Review
