Liang Huixing, male and of the Han ethnic group, born in January 1944, is a native of Qingshen, Sichuan Province and a member of the Communist Party of China. In 1966, he graduated from the law school of the Southwest University of Political Science and Law. In 1981, he graduated from the Graduate School of the Chinese Academy of Social Sciences with a master’s degree in law; he is currently a researcher and PhD student advisor of the Institute of Law of the Chinese Academy of Social Sciences, Chief Editor of the CASS Journal of Law, and chief editor of the Civil and Commercial Law Review. His academic expertise is in civil rights, law of obligation, property law, and methodology of jurisprudence. In 1986, he won the “Young and Mid-aged Expert with Outstanding Contribution” Award. Since 1992, he has enjoyed a special allowance awarded by the State Council.
Struggle for rights and civil law
The life and the heart
Xie Hongfei (hereinafter called Xie): Liang teacher, thanks for taking the time to accept my interview. I think that you first talk about some things that have influence on your life. Because I think that law is a very strong subject for practice and secularity. For judgement on some major problems, it does not have obvious rights and wrongs as well as black and white; lawyer’s judgement was closely related with his life and nature of mind, and does not completely depend on his intellectual structure.
Liang Huixing (hereinafter called Liang): OK, I was born in Xiangliang village, Qingshen county, Sichuan in January 1944. I graduated from the middle school of Qingshen County in 1962. I was admitted the law department of Southwest University of Political Science and Law (named Sichuan Administration College at that time) in 1962. at that time, the college was to train cadres for public security department at all levels. According to the graduation predistribution scheme in 1965, I was assigned to work in Public Security Bureau of Guangzhou. Due to “Culture Revolution”, I worked in Farm-oriented Bearing Plant in Kunming city of Yunnan Pronvince for ten years, I engaged in production labor and was taken as labor and capital as well as Union officer. I went to Graduate School of Chinese Academy of Social Sciences to learn in 1978 and graduated as a postgraduate in 1981, then I engaged in civil law study in Law Study Institute.
Xie: you said in the preface of “The Anthology of Liang Huixing”: today’s achievements was just at the time for reform and opening up and developing market economy, and also was the chance I learned in Chinese Academy of Social Sciences where was best for individual’s free thought and free development.” You mentioned your success and said “Opportunity was the key”. What is the most important opportunity in your life?
Liang: without the historical chance of reform and opening up, I possibly worked in a suburban plant in Kunming of Yunnan province as the Union officer. But it was a contingency for me to be on the road for civil law study. At the beginning of reform and opening up, Professor Zhang Xujiu jin Southwest University of Political Science and Law recommended me to return to university as a instructor. Because the reason of the leader in the plant, I did not succeed. Then at the time when our nation started the resumption of the postgraduate enrollment, professor Zhang Xujiu encouraged me to register and sent me some review books and advised me to register the civil law major of Chinese Academy of Social Sciences. In fact, I did not quite understand the Chinese Academy of Social Sciences and its civil law. It was just a coincidence for me to select civil law major and enter into Chinese Academy of Social Sciences, and also benefited by Teacher Zhang’s advice.
Xie: you mentioned the academic generational problems of civil law scholars after the founding of the new China in the interview given by Professor Yi Jiming. From the surface, Just like Kuhn’s words that every generation of scholars had “Paradigm” difference more or less, such as proposition, ways of argumentation and style, but these difference more depended on social background and personal disposition. I talked about that with Wang Jiafu teacher previously, the young people in our generation had important academic difference with elder scholars: to some extent, dislike of Grand Narrative let us lose sensitivity to social problems; we were quite prominent in the anatomy ability of trees, but did not have any mastering ability for forest, even gradually blunt to the pain of the society. So we’d like you to talk about the experience of academic persons in your generation. In the controversy of civil code, you mentioned that property related with personality and was simplified by some scholars as “Poor people without personality”. I think that this was relevant with your judgment on society judgment and life experience.
Liang: we seldom had law lessons in university and did not learn much law knowledge in university. But we also had our own advantage that other people cannot compare. This was because we had abundant society experience than that in the last generation and the next generation, which let us have deep impression to society problems. We had experience of rural area such as mutual self-help group, cooperatives and people’s commune movement, and participated in “Four Clean-ups” movement and “Culture Revolution”. Due to scarce resources caused by planned economy, we felt hard and painfully. We had deep impression on recognition to society and to the old system, the understanding to “Left” thought route and policy. I worked in the plant for ten years and know the situation of state-owned enterprise and planned economy system, knew what the factory director responsibility system under the leadership of Party committee was, as well as what various comparisons were. Then I realized that single state ownership and planned economic system did not have a future, we should sincerely support reform and opening up as well as market economy. The experience helped me to understand society, planned economic system and single state ownership, and helped me to know market economy and what true rule of law was. There was a old saying: forgetting the past means betrayal. In fact, we cannot forget the experience. It had deeply influenced my personality, thought and view of life. In the debate of civil code, I ever said: “a penniless person cannot maintain survival, how can he be the true man?” some people criticized that that sentence characterized my “The worship of money and wealth”. How they imagined a person who had this experience like me, which would ignore the importance of property and property right!
Xie: many academic people especially liked the words of Russell: “Three passions, simple but overwhelmingly strong, have governed my life: the longing for love , the search for knowledge , and unbearable pity for the suffering of mankind.” In Max Weber’s speech of “Wissenschaft als Beruf”, he mentioned that academics was a bounden duty and had great difference with common occupation. If a academic person did not consider academics as the bowl, he would face various tension. Some people evaluated you are a true intellectual and with scholar-bureaucrat feelings. I think that your ideal, passion and work are linked organically with each other. What consideration did you make when you selected academics?
Liang: I think that to study conformed to my nature of mind. I worked in a factory for ten years after my graduation from university. In these ten years, my main work was to take as propaganda officer and write scripts for radio station in the factory, hosted a wall newspaper, play a ball game with workers, organize propaganda team to perform. Quite a few work were paper work. I had a thorough understanding of myself and knew that paper work conformed to my temperament. I did not think academic study, but realized my advantage, interests on paper work and realized that I was not good at doing person’s work and communicating with leading organs and cadres. Therefore, later on I was on the road of academic study, which just confirmed my interests and hobby. It should be said this was a coincidence. It was hard for one person to select a occupation that fitted his own interests, hobby and character. I must cherish and keep the occupation that I selected. Before I was a postgraduate, I had a chance to work in Provincial Procuratorate, later on, I became a postgraduate and did not work there. If I went to work there, I possibly worked in research office, at least as a dean of research office. I had clear understanding to myself after I worked in law institute of Chinese Academy of Social Sciences. At that time, some people went into business; some became lawyers and did well. I had a chance to work as the judge or a chief judge. But I thought that I was suitable for doing study. And my age did not allow me for frequent changes. In these twenty five years, I still insisted and did not waver.
Xie: current society can be said a society of “possible dizziness”, full of various selection chance and temptation. Compared with high college, treatment in law institute was very low. But law institute had more academic time. For our generation of people, in the situation of materials were so developed compared with previous ones, it was hard to have scholars who studied at night and were cold-shouldered like previous scholars.
Liang: one person’s energy is limited, could he gain everything? Money, power and academic cannot be obtained at the same time. For me, “academic” was “Bear’s paw”, others were all “fish”. I have gained “Bear’s paw” and obtained the most satisfaction, so I will not need “fish”. It is nothing to regret. If we think that there are so many people in our country still worry about solving the problem of food and clothing, and think my parents’ lives and my own past lives, I am very satisfied with my material life. The old people said: A contented is a perpetual feast. Since I chose academic road, I should gain satisfaction and happiness from it. And I did not feel any kind of balance psychologically.
Seek knowledge and seek truth
Xie: your contribution on Chinese civil law is obvious to all. I think it can be summarized: theory study, teaching, academic editing and publishing and legislation, etc. So first could you talk about your experience on theory study?
Liang: I was 34 years old when I became a postgraduate. At that time, our country did not have any regulation on Master of Laws. Later on, I found the rule that Soviet trained law licentiate from the library of law study institute, which required the licentiate must read 100 professional books and must publish two papers on professional publications before thesis defense. I was very happy because I decided to make efforts on this standard since I knew the standard for Master of laws.
Therefore, I began to write since the second semester. And the first writing “Comment on legal system concept” was picked a paragraph by Guangming Daily. The second writing “Comment on bribe crime” was adopted by journal of postgraduate college, which was withdrawn after the corrected proof copies. It was said that the leaders after investigation thought my second writing about the just liberated cadre’s teams. The third writing “Death Declaration” was published in the journal of Southwest University of Political Science and Law in 1979. Enlightened by a famous paper “The theory of enterprise ontology written by economist Mr. Jiang Yiwei, I studied problems for capacity as a subject of law and property right for state-owned enterprise and wrote a article “Theory on enterprise legal person and ownership of enterprise legal person”. I was appreciated by Mr. Shi Tanjing who was the editor of civil law in “Law study” and Mr. Zhang Shangzu who was the chief editor of civil law in “Law study”, and then I published the first phase of “Law study” in 1981. I was stimulated when witnessing the crowds of disgruntled petitioners sat quietly in front of Xinhua door; I engaged in studying infringement behavior system and wrote the article of “Discussion on infringement behavior law” which was published on the second phase of “Law Study” in 1981. And thus I formally stepped on the road of academic research of civil law.
Xie：The civil war office in Law Institute was good at law of obligation traditionally. The “Chinese Civil Law-Obligation of Civil Law” published in 1991 was still having great influence till now. the four anthologies that you published involved in contract law, property law, tort law, consumer protection laws, personal rights law, labor law, economic law and other fields. Special writings involved in hermeneutics of civil law, civil code and property law and so on. Nowadays, because academic division is becoming more and finer, only few scholars like you studied so many fields. It is obvious to all on the influence of property law and civil code. What I concerned more is you research for hermeneutics of civil law, because it is you who propel this subject in Chinese law community. So how did you plan your own academic career at that time?
Liang: I started to study hermeneutics of civil law because I was stimulated when I visited Japan in 1980s. At that time, the Japanese scholars looked down on Chinese people and thought Japan had exceeded the level for hermeneutics of civil law, however, the Chinese people did not know what the hermeneutics of civil law was. In over ten years of time, hermeneutics of civil law was effectively popularized in China. Some judges began to apply these methods and theories when discussing cases. It could be clearly known what method the judge adopted from some good legal precedents. “Hermeneutics of civil law” and “Juridical methods” were not perfect writings. The explanation, applied law’s method and theory mastered by Chinese judges now could be defective and biased, and these defects and biases will be criticized and corrected by successors. I finished my plans and realized my preset targets, so I felt very delighted.
In fact, I had already stopped my academic study in the middle of 1990s. I transferred my main efforts to legislation work, guiding postgraduates and editing publications, another work was to teach judges. I began to study hermeneutics of civil law in the late stage of 1980s. and I published the book “Hermeneutics of Civil Law” in 1995, then I taught explanation, applied law’s method as well as unified contract law for judges at different levels and in each local court for about ten years. I ever went to teach voluntarily in Tibet Higher People’s Court. The lecture draft was collected and published in Law Press, the draft was called “Juridical methods”, which was published in April of 2003 and sold out in September and re-printed in October. I had seen that each judge had one “Juridical methods” in certain basic court.
Xie: some think that your knowledge structure is constructed by knowledge of civil law before liberation, Civil law knowledge of Taiwan and civil law knowledge of Japan. From the situation of your writings, your study fields also include public law theory such as penal law and hermeneutics and so on. Can you talk about your knowledge structure?
Liang: the courses were very less during your years in graduate school. Mr. Xie Huaishi taught foreign civil law, Mr. Wang Jiafu taught Soviet civil law, Mr. Yu Xiru taught Chinese civil law. I read many writings of scholars in Minguo period, such as Jin Kun, Li Yichen, Wang Boqi, Huang Youchang and other persons’ civil law writings. I started to read Taiwan scholars’ writings such as Shi Shangkuan, Zheng Yubo, Wang Zejian, Huang Maorong, Yang Renshou and so on in the middle of 1980s. I was greatly influenced by Wang Zejian on civil law thought and research method. In the late stage of 1980s, I began to read Japan scholars’ writings such as Kato ichiro, Hoxino eyiyiqi, Yigalaxi kioxi, Takiotoko Koboku, Zentaro Kitagawa and so on. And I accepted measuring interests theory advocated by Kato ichiro and Hoxino eyiyiqi. I read several Soviet writings such as the civil law writings from Jian Jin, Blah Tulsi, Helu feena, Joffe and so on, as well as the economic works of Laptev and Mamutov. Joffe was a professor of Leningrad State University and was good at law of obligation and was the mentor of Mr. Wang Jiafu. But Soviet scholar’ works did not influence my knowledge structure basically, because my experience made me realize the harm of single public ownership and planned economic system, and I completely upheld reform and opening up as well as market economy, adopted strong critical stance for law theory based on single public ownership, planned economic system and Stalin economic thought.
Xie: as we all know, a series of books that you edited have made great contribution to propel civil law in our country. From the beginning of “Treatise of civil and commercial law”, you engaged in promoting the development of civil law. “Treatise of civil and commercial law” was the first special research publication in domestic law circles, mainly publishing quite fine and professional monograph research in civil and commercial law field. I still remembered in a few period publications for “Treatise of civil and commercial law”, we were scrambling to buy. Afterwards, each subject continued to follow our example and had their own “Treatise”. The “Treatise for special subject study of civil and commercial law” edited by you mainly published doctoral dissertation of civil and commercial law, which not only promoted the whole academic level of the civil and commercial law in our country in these years, but the most important was to lead the trends of study for civil and commercial law. As for textbooks, your “Civil Law”, Sun Xianzhong’s “Property Law”, Zhang Guangxing’s “Law of Obligation in General”, Chen Huabin’s “Property Law” and so on have great influence on law education in Chinese. But for system details, “Property Law Principle” that you published has great influence. So could you talk about the situation of series of books?
Liang: the works of civil law can be divided into textbook, system details and special subjects. System details are a systematic, thorough and deep discussions for certain field of civil law; special subjects are the subject selected by authors, conducting very detailed introduction is the study like anatomy of sparrows. Now “Treatise of civil and commercial law” has compiled to the 37th volume. There are more than sixty series on special study of civil and commercial law, and I planned to publish one hundred series. If I were 75 years old, “Treatise of civil and commercial law” still continued, I planned to publish one hundred series. It would be a huge project till then and would be a wonder for law study.
Xie: from revision of economic contract law in 1988, I began to participate in the drafting of civil law, and participated in discussion and drawing up of legislation scheme for unified contract law in 1993. Scholars in 12 units separately drafted and summarized, then you was responsible for finishing expert draft of contract law. The subject team of property law study led by you was composed of nine scholars, they spent five or six years finishing the proposed manuscript for Chinese property law draft. And the subject team of civil code study led by you was composed of 25 scholars who came from Peking University, Tsinghua University, Shandong University, Yantai University and Law Institute in Chinese Academy for Social Science and other units with total of nine, they finished “proposal manuscript of Chinese civil law draft” with 1925 clauses. After successfully passed “Property Law of the People’s Republic of China”, civil law in our country had already been an agenda. Could you talk about situation in this aspect?
Liang: the first mission for Chinese civil law was to set up Chinese civil code. Xie Huaishi teacher indicated that in the history of Chinese, there were two major events after a dynasty started: one was to repair histories in the last dynasty; the other was to modify laws in the current dynasty. These two events had very important meanings, and the emperor would send prime ministers to host and would intervene personally. Since the founding of the People’s Republic of China, it did not succeed in drafting civil code even if three times. I engaged in academic study of civil law for 25 years and I expected to use my own knowledge to make contribution to establishing a scientific, progressive and perfect civil code for our country, nation and people. In 1998, vice chairman Wang Hanbin in the eighth National People's Congress decided to restore the draft of civil code and entrusted nine scholar experts to set up working team for drafting civil law (professor Jiang Ping in China University of Political Science and Law, researcher Wang Jiafu in Law Institute of Chinese Academy for Social Science, professor Wei Zhenying in Peking University, professor Liang Huixing in Study Institute of Chinese Academy for Social Science, professor Wang Baoshu in Tsinghua University, professor Wang Liming in the People’s University, retired cadres Mr. Fei Zonghui in the Higher People’s Court, retired cadres Mr. Wei Yaorong and Mr. Xiao Xun in Commission of Legislative Affairs). In January 2002, chairman Li Peng in the ninth National People’s Congress indicated to draft civil code quickly and entrusted scholars to draft in the same month (I was responsible for drafting general principles, general principle of obligation law and contract law; professor Wang Liming was responsible for personality right provisions and tort law provisions; researcher Zheng Chengsi was responsible for drafting intellectual property principles; vice-president Tang Dehua in the Higher People’s Court was responsible for drafting civil liabilities provisions; professor Wu Changzhen in China University of Political Science and Law was responsible for relatives provisions and inheritance provisions; Fei Zonghui was responsible for drafting law application provisions of civil relations with foreign elements). I finished one civil code draft and was deliberated by the standing committees one time in December of the same year. In June 2004, the 10th session of the NPC Standing Committee amended legislation plan once again and the reviewing and revising work of civil code draft was set aside and reviewing and revising for property law draft was restored. Nowadays property law has been issued, and according to the news disclosed by Commission of Legislative Affairs, it would gradually set up tort law as well as application law and civil code of law in civil relations with foreigners. After civil code was issued, he then compiled civil code.
Xie: besides you engaged in academic research, you took a member of the national committee of CPPCC and a member of the Academic Degrees Committee of the State Council, these public offices itself also need you to concern public problems. I notice that you still express your ideas on some social problems besides your research of your own professional problems. Some of these problems are the law problems in other departments, such as the legislation "hits not free of charge", "first case of constitutional law", judicial reform, detention beyond the legally prescribed time limits; there are some problems completely out the range of specialized field, such as various problems existed in Higher education in China. As we all know, intellectuals in modern society no longer perform traditional public functions to some extent, and also get into the feelings of so called individualism from Tocqueville. But your frequent participation in social problems shows you as a intellectual have a very strong identity consciousness and society concerns. Your views on various social problems have struck a strong chord in society. I think your strong social responsibility is similar to the words "pity for the sufferings of mankind" said by Russell. These feelings come from your experience, besides that, whether is it affected by your own knowledge structure?
Liang: Yes, the three translated novels that influence me most: "The Gadfly", "What To Do" and "Insulted and Injured". "The Gadfly" of Ethel Lilian Voynich described a revolutionary who devoted to great cause suffered hardships but his will, persistence and faith never wavered. Reading "The Gadfly" was not "moved" but "shock"! The author Chernyshevsky of "What To Do" was a populism revolutionary, which reflected the hope and pursuit of farmers at lower levels in Russia. Chernyshevsky wrote and finished the novel in prison. The description for love, friendship and so on was very good and mainly presented these thoughts such as democratic, freedom, universal love and equality. I engaged in civil law research in my life of learning, and what I pursued was still freedom, equality, universal love, fairness, justice. Dostoievsky's "Insulted and Injured" presented the concerns for suffered people at lower level, or the sympathy for the weak. The most basic principle for us to study civil law is to protect the weak. This book let us see the sufferings for the weakest people at the lowest level in human society, strengthen the sympathy for the weak. We should insist in civil law: protect the weak and sympathize the weak.
Xie: we all know, you always concern about the survival condition for the disadvantaged groups. You have proposed that "formal justice is only means, substantial justice is the aim". After passing property law, you have mentioned some major problems that involved in national interest and people's livelihood, such as the relations between property law and law based administration, etc. In the special background of our country, implementation of property law will face a major problem which no doubt is the relation between national right and individual right. So could you talk about the influence for the implementation of property law?
Liang: previously it did exist very serious problems for infringing private property rights in our country. For example, on October 8, 2003, the front page in "People's Court Daily" published picture news, which was the government of Huaihua city in Hunan province rectified traffic order before the National Day and destroyed and captured 192 "motorcycles without licences". This large scale of infringement acts for infringing the legitimate property of citizens was as positive news that publicized on the official newspaper of the Supreme Court.
The third paragraph of Article
The major significance for setting up and implementing property law lies in, through the definition of property right that stipulated by property law, to educate the people in our nation. First of all, policeman, public servant, office workers and the party and government leaders of a few places are instilled, and they should know that property right has the effectiveness of "excluding interference from others" and realize that property right is the right of "exclusiveness" and should improve property right concept. There are often serious infringement acts for infringing public properties in our daily life. It could have many reasons, but one reason is that our public servants and local government leaders do not have concepts on property right, and they do not know property right has exclusiveness; good intention originally causes bad results. Through setting up and implementing property law, state organs and the civil service are instilled property concepts, and let them know the existence of boundary for public authority, limit the misuse of public authority and then realize law based administration.
Xie: you are still concerning about the relations between private law and public law in the process of state transformation and social change in China. In your book "Civil Code", you specially mentioned dominant public law and dominant private law. Your judgment on this problem is also the premise for many views of yours. For public law and private law, which comes first, there is a different opinion in law circle. Getting rid of these senseless disputes, do you think what the biggest problem in the process of private law development in our country?
Liang: China adopted foreign civil law when the trend for western society law and solidarism law were very popular. Since Chinese civil law occurred, it had great influence; even some law scholars misunderstood the so called "social standard" as the return of "obligation standard" in history. The so called development trend and development trend for civil law was consistent with the planned economic system and ideology after
We adopted single public ownership and planned economy in long terms. So we cannot spontaneously generate private law concept and private right concept on this economic basis. We conducted reforms and open-up through public authority from top to bottom, and implemented the transition of market economy by administrative means, the aim and means for reform and open-up is contradictory. Though the Central's public authority weakened, local public authority expanded greatly. We did not and cannot timely set up a perfect civil code, which let our social life lack private law concept and private right concept in medium and long terms, and thus cause weakness of private right and powerfulness of public right and being misused.
Xie: you participated in some civil legislation in these years, I noticed that you have written many writings related with civil code. I think this is also your "complex of civil code" with this generations. You poured so many feelings on civil code, and even conducted rigorous criticism on some acts of the state organs—due to this point, I have also felt the influence of Mr. Lu Xun on you. I think this may be your view on civil code function?
Liang: the boundary between public right and private right is not confirmed by administrative law but by private law. Current state public servants do not have any concepts on private law. What our society is lacking is private law concept, which is just the necessity of setting up civil code. We must set up a scientific, progressive and perfect civil code, which can become the "textbook" for the whole society and establish private law concept and right concept in the whole society. If we have this kind of civil code, we can guarantee people's rights and properties, and cause our state organs and government public servants to carry out its official duties in accordance with law. The progress of administrative enforcement of law is the regularization for exercise of public authority; it is not only the problem of administrative law and problem for administrative concept transition. Law based administration is of course to conduct administrative legislation, such as administrative permission law. The more important is to have scientific, progressive and perfect civil code！
We talk about private law now, and we cannot stay on this common statement that civil law is private law, we should analyze private law or tell the significance of private law on law construction. Because rule of law is a ideal status governed through law. Private law represents a right culture, and the abstraction, compactness and advocacy of private law is actually a pursuit of ideal status for law.
Xie: Just as Menci said, "Only goodness cannot deal with national affairs, only law cannot go into effect”, "law in textbook" is different from "Law in action". But in any way, the issue of civil code will surely propel the spread of private law concept in China, and finally promote perfection for Chinese rule of law. Final formation of rule of law depends on daily efforts made by each citizen. Ancient Greeck Heraclitus proposed "struggle philosophy" of law: "people should struggle for law, just like struggle for their own walls". Nowadays, Jhering's famous speech "struggle for rights" is known by every lawyer. I think this cannot separate from your efforts. You published an article on "Legal Daily" in 1980s and called to struggle for rights, so you were the earliest person in China who introduced this concept. One of your writings was named "Struggle for Chinese Civil Code".
Liang: in Jhering's famous speech "Struggle for rights", it proposed two topics: citizen's struggle for right was the struggle for collected papers "Struggle for Chinese Civil Code" published, some people did not understand this: did setting up Chinese Civil Code need "struggle"? The answer is: of course it need "struggle". The other countries have had scientific, progressive and perfect civil codes, so realizing the rights regulated by civil code still need "struggle", nowadays the Chinese still does not one scientific, progressive and perfect civil code, which of course need to "struggle for" setting up this kind of civil code.
The law gives citizens rights, but if the citizens do not want to struggle and not defend their own right, and allow to be trampled upon, the more advanced law also does not protect you. Law should be asserted by us. Law implementation needs struggle. For example, the property law that just passed is to require government to perform duties in accordance with law and limit the government. And the success of law based administration need every citizen's efforts and struggle.
Xie: Yes, I still remember Mr. Sa Mengwu translating Jhering's words, it was impassioned and with enthusiasm.
Review and Respect
Xie: it has been almost one hundred history since the science of civil law developed in China. For Chinese, today's civil law and science of civil law are all foreign goods, though we still argue the problem that Chinese had civil law in ancient time or not. You and professor Yi Jiming talked the inter generational problems of civil law persons since the founding of new Chinese. In the recent report of "Review and respect for the history of Chinese civil law", you still went back to the origin stage of Chinese civil law. Due to your unique academic background and academic achievements, it should be proper for you to summarize the history of Chinese civil law?
Liang: the Chinese civil law can be divided into three stages roughly: emerge and develop at earlier stage (1900~1949); the stage of "Transition", "Stop" and "Death" (1929~1977); revive and develop stage (1978 till now).
Chinese civil law with hundred years of history was one adopted history for civil law. Whatever the adopted German civil law of continental legal system in history or the adopted socialist civil law of Soviet Union and Eastern Europe after 1949, or the "multi-adoption"—namely widely refer to and take lessons from the civil law of developed countries and regions since reform and open-up, there is only one aim which is to "learn" foreign experience. Chinese civil law and civil law scholars always play a role as the "student". Of course, even if it will set up a scientific, progressive and perfect civil code in the future, the Chinese civil law and civil law scholars should continue to study foreign civil law and to absorb foreign legislation experience and theory research findings, namely continue to play the role as a "student".
After our system construction is finished basically, we would summarize and judge the initial imagination is right or wrong according to actual conditions or problems, and judge whether those systems have played the due role or not, only doing that we can extract and ascend from theory. I estimate that it may have some higher academic achievements and scholars in the circle of civil and commercial law on theory and academics by that time. Our scholars will compare with others and discuss common problems in the worldwide. But now we are still students.
Xie: it surely is. For the later developing countries, we should also have our own advantage. In the transplantation of law, there always has the problem "Orange in the south and frutus in the north", even there is a big dispute whether the law can be transplanted or not. After all the law does not exist independently, its existence, especially a role to play, depends on the background from the whole society. In this process, law localization is the biggest barrier faced by law transplantation. So what can our civil law scholars do? And what should they do?
Liang: how to realize the adopted law localization is the eternal theme for the progress and development of Chinese civil law, and also the final target of our civil law scholars in a few generations. In the process of adopted foreign law, adopted foreign law and our national conditions would have inconformity, and even have collision with each other. Therefore, it would cause dispute in the circle inside and out and is an inevitable phenomenon. The dispute of Japan civil code was a typical example. Since the late Qing Dynasty, Chinese had similar disputes when starting to adopt foreign civil law.
Mr. Xie Huaishi indicates that every country has their own features, country and nation without features do not exist, and therefore, when adopting foreign law, it is an important problem to distinguish their own features. It may be not good to copy foreign law mechanically and blindly. It is not right to emphasize and even excuse their own features but refuse to accept advanced foreign law. Dare to accept, good at studying and continuous amending is an important principle to adopt foreign law.
Xie: you mentioned in the report "Review and respect of Chinese civil law history": "the problem lies in when Chinese civil law could stand proudly in the family of world civil law and stand together with civil law of all countries, when we can have the academic study of foreign civil law with the aim of referring and taking lessons from foreign experience, when we can have Chinese scholars who study foreign civil law." I am always thinking this problem for a long time: law self-esteem and nation self-esteem, especially the latter.
Liang: we must advocate the study of "all-around" foreign civil law. Nowadays there are some scholars who study foreign laws in Chinese civil law circle, though they are not specialized in studying foreign law, its study aim is to learn foreign experience and thus cause some academic writings for studying foreign law; but its study subject still limits to "developed countries and regions". The Chinese civil law should see the world, not only closely concern and study civil law from developed countries in market economy, but also closely concern and study the civil law in developing countries and undeveloped countries. We should closely concern and carefully study the civil law of the countries where Chinese goods, Chinese tourists, Chinese investors and Chinese enterprises have reached. It is a pity that Chinese civil law does not do well in this aspect, let alone studying the civil law in Africa, Latin America, Central Asia and Southeast Asia, we lack concerns and study for the civil law in surrounding neighbors including Russia. Based on a responsible spirit for the country, nation and people, Chinese civil law and civil law scholars should keep up with the pace of national renaissance, face the world, implement "all-around" foreign civil law study, and have the courage to accept historical mission given by the country, nation and people.
These scholars will frequently attend international and foreign academic meetings and sit together with the civil law scholars in foreign countries, commonly discuss the major subjects faced by foreign civil law, report academic findings for studying foreign civil law. These civil law scholars are different from the Chinese civil law scholars now and before. Chinese civil law scholars can end the history that it purely played a role as the "student" only when it would train a group of special scholars studying foreign civil law. By that time the Chinese civil law is not only taken as "student" but also as "Mr.", and in the family of world civil law to attain a place!
Xie: in your selected prefaces, you said that your research experience is "independent thinking and independent judgment". These will let us think of Mr. Chen Yinge's evaluation on Mr. Wang Jing'an. My feeling is that you are a scholar with classical and dense atmosphere. Has the courage to stick to will be more and rarer in modern society.
Liang: learning knowledge should be "independent thinking and independent judgment". Law is a social science, "everyone has his/her reasons", it will involve in independent judgment when adopting whose viewpoints, but independent judgment should have standards, which include law principle, philosophical principle, sociology and economic principle and so on, the more important judgment standard is logical thinking, common sense and reasons, and social experience.
Xie: besides theory study, guiding juridical practice and engaging in academic edit work, you still specially wrote how to write related works for law papers, could you introduce some experience for young people?
Liang: I always emphasize that it should train capacities in three aspects: first is Chinese, second is foreign language and third is method, especially emphasis are Chinese and foreign language.
In the three capacities, good Chinese is the most important foundation. Why I said so? For a Chinese and a Chinese scholar, whether he/she engaged in study or teaching or other work, he/she should take Chinese as the foundation and as the basic tool and means of expression and communication. And Chinese people think and do logical reasoning in Chinese. Good Chinese not only lies in writing articles, but also lies in clear level of logical thinking, strong abstract ability and thinking ability. Therefore, mastering and applying Chinese can reflect one’s actual qualification and capacity. My Chinese ability is not bad because I did not have rigorous training. I often advice my postgraduates to read “Archaism” before sleep, which is helpful to my Chinese writing ability.
The ability for mastering and applying good Chinese is also very important, because whatever is engaging in study or teaching, only reading the materials that others translated are bound that you are not standing in the first line even the second line. For me, one foreign language is not enough, if we want to prepare for the doctoral qualifying examination, at least the first foreign language is enough, we can read familiarly and translate correctly. The requirement to Master and Doctorate nowadays include low requirement for Master and Doctorate in China Academy for Social Science. I cannot understand that knowing one foreign language can become Doctor. I think only knowing one foreign language cannot reach the level of Doctor in any ways. To be a qualified Doctor should at least know two foreign languages.
Xie: you are spreading you own law concept now, and find time to accept my interview, Thanks. Finaly, could you say something to the young people?
Liang: Chinese civil law has one hundred histories in our nation. Though it experienced tortuosity, difficulty and stagnation, it did not change its direction of going forward. Because the history chance for reform and open-up as well as development of socialism market economy, Chinese civil law has been concerned and respected by its rapid progress, excellent achievements and contribution. I hope the young generation will win honors for our nation and motherland, and hope our civil law will rank among the civil law in the world soon.
Xie Hongfei: male, now as deputy researcher in Institute of the Chinese Academy of Social Sciencess, deputy director of civil law study office. Concurrently deputy secretary general of Board of Civil Law under China Law Society. He gained Bachelor, Master and Doctor degree of Law in Sichuan University, Peking University and Graduate School of China Academy for Social Science in 1995, 1999 and 2002 respectively. His works include “Contract of Work”, “Civil Law”(coperation), “Nomology” (cooperation), “Suggestion Manuscript and Legsilation Reason Book for Civil Code Scholar” (cooperation). Translated works is “Transition of America Law”. He published papers and several translations on the publications such as “Chinese Social Science”, “Law Research” and “Chinese and Foreign laws”, etc.
Translated by Xu Qiyuan.
Translated by Xu Qiyuan.
Editor: Wang Daohang