Sunday, October 16, 2011

Civil Law, General Provisions


Meaning of Civil Law

1.    Civil law is the law of civil society. The civil society is the common entity of free, equal individuals after the feudal society collapsed, and is an economic, social domain free from governmental intervention. In this civil society, any restraint is accepted only when it derives from individual’s intent, and social relationship is created only by meeting of intent. It can be said, therefore, that the civil law in modern age is the law governing the civil society (market) based upon free social system. Accordingly, the civil law is obliged to change as the civil society or the free social system changes. 

The modern civil society used to be the society consisting of family masters (male) who are equipped with ability of rationality and intent and are self-reliant with fortunes, but from the end of the 19th century or the beginning of the 20th century, the social structure underwent drastic changes in capitalistic nations. As a result, workers who provide labor for compensation began to play as constituents of the civil society, which moved to the modern civil society centering on business entities, workers and consumers.

2.    The civil law is a mode of expressing “certain thought” concerning the civil society in that age. Because of this, it can be said that the civil law is the “civil law as thought”.

At this point, how can one take the civil law (especially the property law) in the context of thought? In the modern civil society, classic liberalism prevailed as legal philosophy and formation of law by individuals who constitute the society was accepted while intervention by government was kept to the minimum extent. As economic philosophy, the school of classic economics that advocated laissez faire gained power as symbolized by “Harmony by God’s Unseen Hands” authored by Adam Smith. With respect to the civil law that governs the market, classic contract law theory that claims the principle of private control as seen in principles of freedom of contract, absolute ownership and negligence responsibility was formed from the 18th century and 19th century, and the civil codes of modern nations were compiled based upon such theory. The civil code of Japan was also compiled in the context of this thought. Capitalism developed marvelously with the support of legal system that respects the private control to the maximum extent.
However, as capitalism developed, actual or economic inequality surfaced and  various distortions or strains began to be seen. The market failed in optimum resource distribution. This is so-called “Failure of Market”.

Thus, it became necessary for the nation to intervene in order to realize actual justice against the civil society that had been preventing the intervention by government, whereby contemporary liberalism represented by a phrase “from abstract “personality” to concrete “human being” was established and the nation became to be actively involved in the civil society. With respect to economic philosophy, so-called Keynesian theory became to be respected. On the other hand, the civil law was obliged to change in principles of freedom of contract, absolute ownership and negligence responsibility.

However, active intervention by the nation to the civil society caused the governmental functions (unemployment countermeasure, social security, planned control over economic activities, etc.) to tremendously swell, which brought about swollen administration (Administrative nation equals huge government.). As a result, people began to show repulsion toward the government because of increase of tax (including social security premium) burden, inefficiency of government activities, etc. This is called “Failure of Government”.

Today, so-called deregulation policy is being implemented centering on the United States of America and the United Kingdom and the “small government” is actively pursued. Japan is in this stream. The legal philosophy of the small government theory is neo-liberalism or libertarianism, and economic philosophy is monetarism or economics supporting supply side. In the field of the civil law, a series of deregulation enactments have been made, through which return to classic private control and classic theory of contract law has been recognized.

In the United States, liberalism itself has been basically doubted since 1980’s because various ill social phenomena of the contemporary society are caused by liberal individualistic freedom, and communitarianism that advocates the restoration of community and construction of community life by real self- restraint subjects has been strongly alleged. In the field of the civil law, there are opinions that criticize classic theory of contract law (“Death of Contract” by Gilmore). Also in Japan, there is academic authority that argues that the social background or inherent standards of the community to which no attention was paid because only intent was regarded as an important factor under the classic contract law should be taken into contract law (post-modern contract theory).
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ព្រឹតិ្តច្បាប់កម្ពុជា (ព ច ក)គឺជាក្រុមឯករាជ្យ និងមិនមែនជាបក្សនយោបាយទេ ជាក្រុមស្ម័គ្រចិត្តដែល ធ្វើការ​ សម្រាប់ធ្វើ ការផ្សព្វផ្សាយអំពីច្បាប់ និងព័តមាន ដែលទាក់ទងនឹងការអភិវឌ្ឍ និងស្ថានភាព សិទ្ធិមនុស្សនៅកម្ពុជា។ រាល់មតិ យោបល់នៅក្នុងព្រឹត្តនេះមិនអាចយកទៅធើ្វជាអំណះ អំណាង ចំពោះមុខ តុលាការ រឺក្នុងគោលបំណងអ្វីផ្សេងទៀត ឡើយ។ ព​ ច ក​ គ្រាន់ផ្តល់នូ​វ​ចំណេះដឹងច្បាប់ និងចំណេះដឹងផ្សេងៗទៀតដល់ប្រជាពលរដ្ឌប៉ុណ្ណោះ។ ប្រសិនលោក អ្នកចង់ដឹងព័តមានបន្ថែមអំពី ព ច ក សូមផ្ញើអីម៉ែលមកយើងខ្ញុំ។​ យើងខ្ញុំសូមស្វាគមន៌រាល់មតិលំអដល់ ព ច ក៕
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