《民法典》傳統基因與民族特色的法理解析

Juristic Analysis of Traditional Genes and Ethnic Characteristics in Civil Code

"我國民法典汲取了優秀傳統法文化,帶有鮮明的民族特色。傳統法文化既形塑了民法典的獨特人文精神,也對其制度建構深具啟示。在精神牽引上,傳統文化的德法合治影響了民法典濃厚的道德關懷,重視抽象化的人之德性價值為人格權獨立成篇提供了哲理論證,傳統民本精神、“法順人情”、天人合一思想、誠信文化都有其精神傳承。在民法典制度安排上,繼承了傳統的典章治理智慧和通過法典化增強民族認同的政治使命,“有典有冊”、律例統編的傳統形式啟發了民法典簡約的立法技術。此外,在具體制度上,傳統家事法律制度深刻影響了婚姻家庭編,傳統典權制度為農村土地“三權分置”進行了歷史論證。民法典對民族特色的彰顯並非偶然,其原因在於民法典是民族特質的法意凝練,法治發展趨勢要求從法律移植到“中國之治”,通過民法典提振民族精神也具有世界經驗。但傳統法文化影響不能過度拔高,其諸多人文主張僅停留在觀念層次,而缺乏制度建構。應對傳統觀念進行現代化的制度轉換與批判性繼承,引領新的社會文明。"

"The excellent traditional law culture was absorbed into the Civil Code in China withdistinctive national characteristics. Traditional law culture not only has shaped the unique humanistic spirit of the Civil Code, but also has some profound enlightenment on its system construction. In terms of spiritual traction, the combination of morality and law in traditional culture has affected the strong moral care of the Civil Code. The emphasis on abstract human value of human morality provides a philosophical evidence for the independence of personality rights. Meanwhile, the Civil Code has spiritual inheritance of traditional people-oriented spirit, 'laws follow human feelings', the idea of harmony between nature and man, and the culture of honesty. In the institutional arrangement, the Civil Code has inherited the traditional wisdom of rule governance and the political mission of enhancing national identity through codification, whose simple legislative techniques was inspired by the traditional form of 'codes and books' and the compilation of laws and regulations. In addition, the traditional family law system has a farreaching impact on the marriage and family part, and the traditional system of pawn rights has made a historical argument for the ' separation of the three rights' of rural land in specific systems. It is not accidental that the Civil Code has manifested our national characteristics, because the Civil Code is a condensing of the legal meaning of national characteristics, and the development trend of the rule of law requires transplantation from the law to the 'rule of China', which also has world experience in boosting the national spirit through the Civil Code. However, the positive influence of traditional law culture cannot be excessively exaggerated, many of which humanistic propositions only remain the conceptual level and lack system construction. We should carry out a modernized system transformation and critical inheritance of traditional ideas, in order to promote new social civilization"