Reflections on the Functional Positioning of the Claims Analysis Method in the Teaching of Civil Law
DOI:
https://doi.org/10.54097/ijeh.v9i1.9365Keywords:
Basis of a claim, General theory of civil law, Limitation, Reasonable positioning.Abstract
Traditional civil law teaching mostly adopts theoretical lectures, and the lecture method with the goal of knowledge transfer has become the mainstream method of teaching civil law courses. Although the academic community once criticized this theoretical, abstract teaching method, its mainstream status has not been shaken. On the one hand, it is because the lecture method I,s an effective way for teachers to impart systematic knowledge and students to receive indirect knowledge; on the other hand, it is because China is a traditional statutory country, and although the civil law is an imported product, it is still formulated in a codified and cultural way. With the promulgation of the Civil Code, the teaching method of claim basis as the analysis method was gradually introduced to China by researchers studying in Germany and has become a more popular teaching method in the teaching of civil law. As an important successor of German civil jurisprudence, whether the claim-based analysis method, which is more in line with the legislative structure of the Civil Code, should be promoted as a necessary teaching method has become a more important topic. In the German legal education system, the analytical method of claim basis covers almost all stages from theory to practice and has a very important supporting role for German jurisprudence. However, it is undeniable that the claim basis analysis method itself has limitations. On the one hand, it provides an omniscient judge's perspective, which does not belong to the norm of real judicial practice; in addition, from the inherited situation of other countries in the civil law system, the complete adoption of the claim basis analysis method will raise the cost of the whole legal education. From the viewpoint of the actual requirements of legal education in China, the claim basis analysis method can only be used as one of the means of legal teaching and requires the relevant curriculum system to cooperate to complete the reasonable positioning of the claim basis analysis method.
Downloads
References
Wu Xiangxiang, "The Basis of Claims and Their Opponents", Journal of Nanjing University (Social Science Edition), No. 2, 2020
Since 2019, many law schools such as Peking University Law School, Shanghai University of Finance and Economics Law School, China University of Political Science and Law, East China University of Political Science and Law, Zhongnan University of Economics and Law, Southwest University of Political Science and Law, Wuhan University, etc. have offered elective courses or summer courses on civil law appraisal case teaching using the "foundation of claim" analysis method. The claim-based analysis method was once popular. For example, Peking University Press and China Legal Publishing House have each published a set of German case law textbooks focusing on the foundation of the claim.
For the viewpoint that introduces the theory of claim basis and supports it, see Wu Xiangxiang, "The Method of Exploring Claim Basis in Legal Application," in Legal Methods, Vol. 1, 2008, Ge Yunsong, "A Case Exercise Report Based on the Claim Basis Method," in Beihang University Law Review, No. 2, 2015; Zhu Xiaozhe, "Please The Methodology of Teaching Claim Basis Example Study," in Rule of Law Research No. 1, 2018; for opposing viewpoints, see Wang Liming, "Exploring the Basic Methods of Civil Law Case Analysis," in Political and Legal Forum, No. 2, 2004, Zhang Song Lun, "Legal Dogmatics as a Teaching Method: Reflection and Abandonment: Case Teaching and the Theory of Right to Request Foundation as Object", in Law Review, No. 6, 2018.
Zhu Qingyu, General Theory of Civil Law (Second Edition), Peking University Press, 2016, p. 563.
Wu Xiangxiang, "The Basis of Claims and Their Opponents", Journal of Nanjing University (Social Science Edition), No. 2, 2020
Jin Jing: "Basic Thinking on Claims: The "Engine" of Legal Doctrine for Case Study", Politics and Law, No. 3, 2021
Ji, H. L., "Legal Dogmatics: Strengths and Weaknesses," Jiaotong Jurisprudence, No. 2, 2015
Songlun Zhang, "Legal Dogmatics as a Pedagogical Approach: Reflection and Abandonment - with Case Teaching and the Theory of the Basis of Claims" in Law Review, No. 6, 2018.
For cases, see: Wang Zegan, Thinking in Civil Law: A Theoretical System of the Basis of Claims, Peking University Press, 2009, p. 263
Chapter, "Case Teaching in Successor Jurisdictions: Why and How?, NUJ, No. 4, 2020.
