《民法典》婚姻家庭編適用銜接問題研究

The Application Connection of Marriage and Family Law in Civil Code

婚姻家庭編成為民法典的一編，提升了婚姻家庭法的體系化，婚姻家庭法形式上回歸了民法，也帶來了婚姻家庭法的開放法源。婚姻家庭法的法律淵源並不侷限於民法典婚姻家庭編，民法典其他各編以及相關單行法律法規中也存在婚姻家庭法律規範。民法法源論不限於考察靜態的法源表現形式，還要關注動態的法源衝突協調，形成動態法源觀。婚姻家庭編不可避免地存在與民法典其他各編的關聯交叉、融合銜接，婚姻家庭編適用過程中的最大難題是妥當協調與民法典其他各編的動態適用銜接關係。辯證看待其他各編的體系溢出效益和婚姻家庭編調整對象與調整方法的特殊性，有助於實現婚姻家庭編向民法典實質意義上的回歸。對婚姻家庭編與民法典其他各編乃至相關單行法律法規適用銜接問題的系統全面研究，有助於實現婚姻家庭法在民法典內部和外部的雙重體系化。

Marriage and family law has become a part of the Civil Code, which has promoted the systematization of marriage and family legal norms. Marriage and family law has returned to the civil law nominally, and also brought about the open sources of marriage and family law. The legal source of marriage and family law is not limited to the marriage and family part of the Civil Code. There are also marriage and family legal norms in other parts of the Civil Code and relevant individual laws and regulations. The theory of source of civil law is not limited to the investigation of static forms of source of law, but also to the coordination of dynamic source of law conflicts, so as to form dynamic sources of law. It is inevitable that the marriage and family part has connection and integration with other parts of the Civil Code. The biggest problem in the application of the marriage and family part is how to properly coordinate the dynamic application and connection with the other parts. It is helpful to realize the return of marriage and family codification to Civil Code in essence by dialectically looking at the systemic overflow benefits of other parts of Civil Code and the particularity of the objects and methods of adjustment of marriage and family law. A systematic and comprehensive study on the application and convergence of marriage and family part with other parts of the Civil Code and even relevant individual laws and regulations will help to realize the dual systematization of marriage and family law, both internally and externally, in the Civil Code.