民法之編纂－－方法與考量因素

Codification of Civil Law: Methods and Factors Needing to Be Considered

民法典之編纂方法，並不只有抽象以至於具體之方法，尚有權利與請求權之編纂方法，亦即將法律規定區別權利或請求權發生要件、障礙要件與消滅要件規定。這三大類規定均關係著請求權或權利，而自我形成一套體系。這套體系配合不同之語法表達，即本文與但書、條件句，妥善分配當事人間之舉證責任。法條彼此間不應矛盾，立法與修法時，應顧及法條彼此間是否處在和諧秩序之中。倘若無法排除矛盾，無論是事前或事後無法排除，則矛盾之法條將宣告彼此無效。事前排除矛盾，乃最理想之作法。例如透過準用，即可事前排除矛盾，法條亦經濟。繼受外國法制時，亦應將其融入國內法體系，不僅用語上應與國內用語銜接，內容上更應融入國內法體系。倘若立法者欲制定特別規定，即不同對待相同之兩項事物，則應善盡合理說明之立法義務，否則為恣意。縱使為採行民商合一制之民法典，亦區別且應區別民與商，以避免矛盾。民法適用對象為任何人民。一部令人民容易親近之民法典，乃國民主權落實之表現。法律用語應盡量與日常生活用語接軌，亦即盡量於民法典內使用人民一般生活用語。時間總影響，甚至支配著人民生活，包括法律生活。依時間原則編纂民法，亦可使人民更容易接近民法。

The methodological approaches to the codification of civil law include not only the organizing order from general rules to particular exceptions, but also the categorizing order of provisions according to the legal requirements for the occurrence, obstacle and extinction of rights and claims. All the three types of provisions are rooted in rights and claims, and present themselves in a systematic structure. This system, together with various forms of expression, such as main clause, proviso, and conditional statement, well defines the distribution of burden of proof. Legal rules must not contradict each other. Making or revising laws need to take into account whether their provisions are in harmonious order. In case contradictions between provisions cannot be eliminated, either ex ante or ex post, they would cancel out each other's effect. It would be best to eliminate contradictions ex ante by applying the mutatis mutandis method. This can also make the provisions more efficient. In reception of a certain foreign law, the law in question needs to be assimilated into domestic legal system. Terms or phrases taken from foreign laws should be translated into equivalent Chinese ones, if possible. When enacting a special regulation, namely treating two same objects with different approaches, lawmakers have the obligation to describe why such a regulation needs to be set. Otherwise the rule would be deemed as capricious. In adopting the model of combining civil and commercial law, such a civil code should differentiate between merchants and non-merchants in application to avoid potential inconsistency. A civil code which is accessible to the people is instrumental in the exercise of civil rights. Laws should be written in plain language, whenever possible. This is to say that civil law should adopt language used in people's daily lives. Time has its influences on people's daily lives, including legal behaviors. Codifying civil law in time sequence can make the law more accessible to the ordinary people.