THE
GERMAN CIVIL CODE.
TRANSLATED AND ANNOTATED,
WITH AN
HISTORICAL INTRODUCTION AND APPENDICES.
BY
CHUNG HUI WANG,D.C.L.,
Member of the Internationale Vereinigung für vergleichende Rechtswissenschaft und Volkswirtschaftslehre zu Berlin;
Member of the Sociétéde Legislation Comparée,&c.
LONDON:
STEVENS AND SONS,LIMITED,
119 & 120,CHANCERY LANE,
Law Publishers.
1907.
版权页
声 明 1.版权所有,侵权必究。
2.如有缺页、倒装问题,由出版社负责退换。
图书在版编目(CIP)数据
德国民法典:王宠惠英译本/戴永盛校勘.—北京:中国政法大学出版社,2019.12
ISBN 978-7-5620-7585-1
Ⅰ.①德… Ⅱ.①戴… Ⅲ.①民法-法典-德国 Ⅳ.①D951.63
中国版本图书馆CIP数据核字(2017)第255823号
出 版 者 中国政法大学出版社
地 址 北京市海淀区西土城路25号
邮寄地址 北京100088信箱8034分箱 邮编100088
网 址 http://www.cuplpress.com(网络实名:中国政法大学出版社)
电 话 010-58908437(编辑室) 58908334(邮购部)
承 印 北京中科印刷有限公司
开 本 710mm×1000mm 1/16
印 张 43.25
字 数 780千字
版 次 2019年12月第1版
印 次 2019年12月第1次印刷
定 价 198.00元
TO
THE FACULTY OF THE
LAW SCHOOL
OF
YALE UNIVERSITY
This Work
IS BY PERMISSION
Dedicated
AS A
TOKEN OF RESPECT AND ESTEEM.
PREFACE.
THE new Civil Code for the German Empire(Bürgerliches Gesetzbuch für das Deutsche Reich)received the Imperial sanction on August 18th,1896,and came into effect on January 1st,1900. Four French,one Spanish,one Italian,and two Japanese translations have thus far come to my notice,and possibly there may be translations into other languages. The present translator himself hopes to bring out a Chinese rendering at no distant date. No English translation has as yet appeared,and consequently the work has not received the attention which it deserves in the English-speaking countries[1].
The need for an English translation is,however,undeniable. Unlike the Code Napoléon,the German Civil Code is the most carefully worded and scientifically arranged code extant,representing no less than twenty-two years of careful study and research by the most eminent German jurists. The late Professor Maitland referred to it(in his Political Theories in the Middle Ages,p.xvii.)as being“the most carefully considered statement of a nation#apos;s laws that the world has ever seen”,while Dr.A.Pearce Higgins speaks of it as being“a standing object-lesson to all States that are looking forward in the future to a scheme of codification”[2].This monumental work of German intellect deserves,therefore,if not a prominent place,at least some place in English legal literature.
Nor is the German Code of mere academic interest to the English-speaking peoples. Both England and America are closely connected with Germany—the former commercially,by its proximity to the Continent;the latter socially,by the
I have taken great pains to make the translation as faithful as possible,and have,in more than one instance,sacrificed style to accuracy. The condensed statement of the text needs elucidation even to the Germans themselves,while the different sections are so mutually dependent that it is difficult,if not impossible,fully to comprehend the meaning of one without reference to some other section or sections. Consequently,such annotations and cross-references have,wherever necessary,been added as would conduce to a proper appreciation of the text,care having been taken not to make the book unwieldy. During the progress of this work an important change has been made in the plan as originally conceived. In order to put the fundamental principles of German civil law in clearer light before English-speaking lawyers,I thought it advisable to emphasize the salient points of similarity and dissimilarity between the German Civil Code and the corresponding rules of English law. The attempt was finally given up,though not without hesitation,and in spite of the fact that much time and labour had already been spent in this direction. The reasons are threefold. First,those who take an interest in the study of this Code may be safely presumed to have already a good knowledge of English law,and they can,therefore,compare their own system of law with that of the Germans in a much better way than one to whom both German and English are acquired languages. Secondly,the timely appearance of the proposed codification of the English civil law(Das bürgerliche Recht Englands auf Grundlage einer Kodification)and of Dr.Schuster#apos;s admirable work on“The Principles of German Civil Law”,renders the task of comparing the two legal systems comparatively easy.Lastly,the change was due to an earnest desire to reduce the book to as convenient a size as possible.
Among the numerous works consulted may be especially mentioned the
If this edition of the German Civil Code creates among the English-speaking peoples an interest,however slight,in the study of comparative law,the labour which I have bestowed on this work will be amply repaid.
C.H.W.
CHARLOTTENBURG,BERLIN.
August 1st,1907.
HISTORICAL INTRODUCTION.
To the Germans the enactment of a civil code for the whole Empire is of the greatest importance,when the pre-existing legal circumstances are taken into consideration. In 1495 the Roman law was“received”in Germany as the common law of the land. “The Roman law as‘received’,though in theory Justinian,was in practice the law that had been elaborated by a long race of Italian commentators and glossators. This‘reception’also was only as a supplement to the local customary law;‘it came to the aid of particularism’.Whole departments of law affecting the every-day life of the people—family law,land law,marriage,succession—were for centuries largely governed by old Germanic customs as they had been transformed by feudal influences. It was in the law of obligations that Roman law exerted its greatest influence. The local customs,however,after the reception required to be proved as such,while the Courts took judicial notice of the Roman common law,and as proof was often difficult,the chief Germanic survivals came from those customs which had been reduced to writing.” According to the informations furnished to the Reichstag by the Imperial Office of Justice,the division of the Empire from a juridical standpoint was as follows:
(1)In the heart of Germany lies an immense territory extending from the Alps to the Baltic Sea,from the River Weser to the River Elbe,and from the Black Forest to Bohemia,and containing a population of 16,500,000. This region was subject to the Gemeines Recht,i.e.,the Roman common law as received in 1459,and numerous ancient local laws,urban laws,privileges and statutes.
(2)In Prussia,with a population of 21,200,000,the Prussian Code of 1794(Das allgemeine Landrecht für die K?niglich-preussichen
(3)In the Rhine Provinces,6,700,000 of the inhabitants were subject to the Code Napoléon of 1804,and 1,700,000 to the Badisches Landrecht of 1809.
(4)In Saxony,containing a population of 3,500,000 the S?chsisches bürgerliches Gesetzbuch of 1863 was in force.
(5)In Schleswig-Holstein,with a population of 15,000,the Danish law of 1683 obtained.
(6)A small district in Bavaria,having a population of not more than 2,500,was subject to the ?sterreichisches allgemeines bürgerliches Gesetzbuch of 1811.
Of these laws,some were written in German,some in French,some in Greek,some in Latin,and some in Danish. To add to the complexity,each of these systems was subject to change by local laws and customs. The situation was vividly depicted by Herr Nieberding,Secretary of the Office of Justice(Session of February 3,1896),when he said:“What confidence can people have in their rights when they find,as is often the case,that the law of succession is totally different in two contiguous places?Here the wife inherits;there she has no rights of succession whatsoever;here the brothers and sisters of full blood and half-brothers and half-sisters on the father#apos;s side are admitted on equal terms;a few steps away their rights differ completely.” Such was the legal condition in Germany prior to the adoption of the Civil Code. That such an anomalous state of things could have been tolerated for so long a time is a legal mystery which remains to be solved.
The Germans were not,however,slow in realising the necessity as well as the importance of the unification of civil legislation. Even as early as the beginning of the last century and not long after the formation of the German Confederation by the Congress of Vienna,a movement was on foot to enact a code for the whole Confederation. This gave rise to the celebrated dispute between Thibaut and Savigny,and it was then that the latter founded the“historical school”for which he has ever since been famous.Savigny contended with much force andability that the time was not yet ripe for Germany to receive a code,and that a nation#apos;s laws could be truly improved not so much
Another serious difficulty to be encountered was the constitutionality of such an undertaking,there being no central organ in the newly-formed Confederation competent to legislate for the whole Union. However,popular sentiment grew stronger and stronger in favour of legal unification as time went on,and finally found expression in the project for the new Constitution of 1849,Art.XIII(59)of which declares inter alia commercial law,bills of exchange,criminal law,and civil procedure to be subject to federal regulation. Unfortunately,the project did not go beyond the stage of an official draft,and the only result was the adoption of a Commercial Code and a Law on Bills of Exchange. These were originally enacted as State laws by each of the States individually,and it was not until after the establishment of the North German Confederation in 1867 that they became Federal laws. In 1862 a conference representing ten States met at Dresden to draft a uniform Code of Obligations which was completed after four years#apos;work,but was never adopted. The Constitution of 1867,Art.XIII.(4),declared the law of obligations to be within the competence of the Federal Legislature,and this provision was without any extension reproduced in the new Constitution of April 16,1871. The federal legislative power was subsequently enlarged by successive amendments adopted in 1872 and 1873,and the amendment of December 12,1873,finally conferred full powers on the Reichstag to legislate on all matters relating to civil law.
In February of the following year,in pursuance of this amendment,the Bundesrat nominated a commission of five,officially known as the Vorkommission,to fix the plan of the work and the method of procedure. The plan recommended by the commission was that the task should be entrusted to a commission,and that each of the main divisions of the proposed Code should be allotted to a single member,whose work,when once completed,should form the basis of deliberation and modification by all the commissioners sitting together. The mode of procedure having been approved of by the Bundesrat,a commission of
As had been expected,the publication of the project gave rise to bitter criticism on all sides. The Germanists,headed by the distinguished jurist,Dr.Gierke,charged the codifiers with having sacrificed the national laws by giving too much predominance to the Roman law;the Socialists objected to the Code on the ground that it was too favourable to the capitalists,and detrimental to the interests of the labouring class. Another objection,by no means a slightone,was based on the fact that the commission was composed of doctrinaires and officials only;that the commercial,agricultural and industrial interests were entirely neglected;and that the draft was couched in obscure language unintelligible to the lay mind. To pacify the popular dissatisfaction,the Bundesrat,on December 4,1890,appointed a new extra-parliamentary commission of twenty-two members to revise the project. The commission was composed of practical men,selected from among various classes of people;four of the former members were,however,retained in order not to break the thread of the Work. The commission began to sit in April,1891,and each part of
It was here that the draft passed through its most severe ordeal. After having been subjected to a general discussion,it was laid before a committee of twenty-one members in which all the political parties were represented. The Committee held,altogether,fifty-three meetings,and on June 12 it presented its report to the House. On June 27 the second reading took place.
The debates were lengthy and animated;but the order,the dignity,the patriotism with which they were conducted were also significant. The only important amendment was that to 1305,fixing the age of twenty-one instead of twenty-five as the age at which a person is permitted to marry without parental consent. The deliberation chiefly centred on the following topics:
(1)Interdiction of persons on account of habitual drunkenness(6),six speakers taking part in the discussion.
(2)The juristic personality of associations(21),eight speakers.
(3)The avoidance of juristic acts which are contrary to law,or contra bonps mores(309),eight speakers.
(4)The liability for damage caused by animals(833),twelve speakers.
(5)The liability for damage caused by game(835),thirty speakers.
(6)The responsibility of public officers(889),eight speakers.
(7)Civil marriage(1303),fourteen speakers.
(8)Consent of parent to marriage(1305),nine speakers.
(9)Insanity as a ground for divorce(1569),eleven speakers.
(10)Parental power(1089et seq.),nine speakers.
The principal speakers were:Lenzmann,Stadhagen,von Cuny,Bachem,Planck,Enneccerius,Niderding,Dziembowski,von Buchca,von Stumm,Frohme,Rickert Bebel and Auer.
After the third reading the Bill passed the Reichstag on July 1,the Bundesrat on July 4,and received the Imperial sanction on August 18,1896. It was formally promulgated on the 24th of the month,and on January 1,1900,it came into effect. Thus for the first time in the history of Germany there came into being a German Civil Code,in the truest sense of the term,which obtains throughout the length and breadth of the Empire[3].