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Debt: the body of natural law rationale

Author: Anonymous From: www.yourpaper.net Posted: 2007-11-20 17:41:05 Read:
Abstract: The current legislation on natural debt made the preliminary provisions. The natural debt in theory there are many issues worth exploring, I type on the basis of analysis of the natural debt defuse say and believe that The natural debt in line with the tenor of the law, has a communication method Italy, and the role of human.
Keywords: natural debt typed method intended human
"Section 138 of the General Principles of the Civil Law provides that: exceed the limitation of action, and that voluntary compliance by the parties, not subject to the limitation period limit. Supreme People's Court, "the views of a number of issues about the implementation of the General Principles of the Civil Law 171 provides: exceeds the limitation of actions during the obligation to fulfill the obligations he alleged that exceeds the limitation of action grounds of estoppel, not support. An academic think this is our natural debt provisions. But in addition, our laws are not the natural debt provisions of other circumstances, there is no principle of natural debt provisions. This article intends to explore the natural debt problems, to ask for advice.
The natural debt SUMMARY say
The so-called natural debt is legal debt symmetric. Debt as specific parties may request the legal relationship of the specific behavior depending on whether law enforcement can request the protection of the force, divided into the natural debt and legal debt, the classification of debt and responsibility separation theory. Traditionally, the creditor has a claim for payment to take delivery of the right and creditor protection claims three power reflected debt request force effect, Paul strong and enforceable. As a legal debt has the power and effectiveness, is a completely debts natural debt different from the legal reason for the natural debt debt, because of its lack of debt, part of the power and effectiveness, so some scholars that the natural debt as incomplete debt, and the natural debt is defined as the loss of legal force protection, and shall request to enforce the debt. [1] from the definition, lacking in natural obligation to enforce order was realized effectiveness. Unenforceable debt is generally referred to as natural debt in the common law countries. Germanic law, with the rise of the debt and the responsibility of the difference between theory responsibility as debt guarantees and compulsory achieve clarity of relationship so that the debt, the debt does not necessarily bear such a guarantee or responsibility, therefore, the value of the natural debt. This paper argues that the natural debt is defined as a lack of enforcement power of bonds, a clear distinction between the natural debt and legal debt, embodies the essence of the debt as a legal concept that to take delivery of benefits. In fact, payment requests and payment protection only of Acceptance means. Due to The natural rights holders of the debt can still take delivery of and need not be returned, so to maintain the nature of the bonds, and it is still called the debt; On the other hand, the right person to take delivery of the natural bonds is based on the automatic benefit of others and not to request enforce, as lacking the power and effectiveness of the debt, so called for the natural bonds or incomplete debt, to distinguish it from the legal debts.
The concept of natural debt originated in Roman law. Roman law on natural debt its no legal right to appeal and distinct from the legal debt. Roman law does not distinguish between the obligations and responsibilities, so the natural debt debt provisions for the lack of general legal requirements. [2] However, with the progress of society, the development of the rule of law, this kind of theory has been abandoned for many scholars, that the lack of natural debt is not a right of appeal but in favor of the right to. Aging after the natural debt, for example, the legal debt expiration of statute of limitations eliminated, rights holders not lose the right to appeal, but in favor of the right, which still apply to the court proceedings, but its right to the original debtor made permanent a defense, not was to achieve it. Some scholars believe that "the law does not matter to the law (the national legal system titration) debt, all debt can only be derived from natural law, natural debt natural debt is the first in the natural debt and legal debt, but to develop generation of law makes part of the natural bonds directly legalization is not the legalization natural debt, due to development of the existence of the law the legal debt, its natural non Previously so pure a legal debt to some extent in enclosure within the scope of the natural bonds, by contrast, the legal debt is closed, the natural debt is open. [3] So, I think the distinction between natural debt and legal debt due legal, and the lies of the so-called statutory grant equal rights and obligations between the main law enforcement protection. So, natural debt means the enforcement of forces lack the debt.
The nature of the debt of the two natural
For, in theory, have a different understanding of the essence of the natural debt. One is the legal obligation demoting said. The theory is rooted in the early 19th century social thought. In the early 19th century, the second rule of law wave of the rise in Europa, the popularity of the concept of positivism, rational people to pursue form a clear distinction between law and morality, that law and morality have their field of application, each disturbance. Since the natural debt is legal on the system, should have a legal obligation, when its effectiveness is missing, non-preservation, for demoting legal obligations; the moral obligation sublimation says. This stems from the late 19th century, this period, natural law theory once again rise, people no longer indulge in the legal form of rational and began to explore the legal value of rational, adhering to the old theory of natural law, the law as freedom, fairness, justice form of expression, legal social trends, has been given a more moral connotations. "No distinction based on the nature of the legal concept, natural debt and moral obligation." [4] Therefore, the protection of the natural debt to take delivery of the effect, for legal protection of justice connotation of moral obligation. Natural debt essence is regarded as a moral obligation the sublimation; later scholars based on the criticism of the first two theories and to carry forward the new Essence Natural Debt, or said request reduction of force in law, and take delivery of the force on the moral sublimation "[5], or say" natural debt reduce the request of creditors force the debtor to fulfill their obligations in law and also the creditors of the holding force, or take delivery of the force and the effectiveness of the performance of the debtor in the moral sublimation " [6] Although both expressed different, but the content is the same, no essentially different.
This article agree with the last theory. Moral law as different social regulation means, is not one or the other of the relationship between moral and legal existence of a neutral zone, would come to a different conclusion from a different perspective on moral or legal. Ethics and law itself is in complete harmony, can not be separated even in opposition to see from both and the difference between theory can exist outside the scope of the moral and legal one thing both have coincident part, but with both not equivalent. The Natural Debt is precisely such a "thing". From a moral point of view, The natural debt can be regarded as a moral obligation to sublimation, from a legal point of view, the natural debt can be deemed legal obligations demoting. But regardless of the simple observation from which point, no doubt lost in a one-sided, but to a combination of the two, in order to fully grasp the natural debt - the essence of the moral obligations of sublimation and legal obligations demoting. This is not a simple sum of the previous theory, actually reflected a profound understanding of the relationship of law and morality. Sublimation benefit effect, demoting enforceable.
Third, the natural type of debt
France, China and France has adopted the concept of natural debt. 1235 of the French Civil Code provides that: at all settled debt as a precondition, do not owe the debt. Whom settled, was to request the return. Shall request the return of the natural debt has been settled for voluntary.
The debt of the French law of natural parent illegitimate child support obligation, the parents give dowries daughter obligations, gambling debts. Germany and France, although not explicitly recognize the natural debt, but in theory that should be in the following debt belongs to the natural debt: the debt after the completion of the elimination of aging, media marriage of remuneration, parents for their children set dowry obligations, moral obligation or ceremonial not repaid part of the debt, gambling debts and other obligations, according to the co-ordination or bankruptcy proceedings. Italian Civil Code "although no natural debt appellation, but scholars believe that the natural debt substantive legal norms, Milabaili" natural debt is not legally binding, but they get the "Codex" recognition and natural bonds as security for the fulfillment of the payment should not be performed in Chapter 7 of Part 4 [9], the norm ". He believes that the Italian law expressly provides that the "typical" natural debt should include the following: 1, the elimination of the natural aging expiry debt. 2, Trust. 3, a gambling debt. [7] Chinese scholars on the basis of the origin and nature of the analysis of natural debt, the the natural debt should. For example, some scholars believe, the natural debt should include the following: 1, the raising of the maintenance obligations of children to their biological parents; legal maintenance obligations relatives are dependents; children on the death of the parents voluntarily repay debt owed; debtor automatically fulfill the debt after the completion of limitation; 3, to the social volunteer to help the weak and friends for help; 4, the emergency hedge beneficiaries voluntarily compensate for the loss of the victim. [8] In addition, scholars believe that the natural range of debt should also include the parties have agreed that no right of appeal of debt, debt, unpaid custody light without the right to request of the management remuneration; [9] on the agreed interest-free borrowing that voluntary compliance voluntary compensation of the damage caused by the negligence, voluntary compensation for damage caused due to accidents. [10] discusses the comprehensive range of natural debt at home and abroad, combined with China's reality, and I believe that our country's natural debt should include the following types:
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