國家治理體系中《民法典》制度的守正與創新

Inheritance and Innovation of the Civil Code Systems in the Context of National Governance Scheme

當下再審視《民法典》，應擺脫一味的“解釋論”視角，由部門實踐向制度經驗昇華，最終向國家治理回歸。為此，作為《民法典》權利法本質精神的意思自治，首先需要在個體自治維度與國家治理層面形成有效契合，有必要將權利自治理念落實於大眾實踐的日常細節。由意思自治引申出的形式公平可類推實質公平，藉此極大程度地簡化裁量難度，有效管控裁量濫用風險。因形式公平落空引發的治理缺陷，以及法律借鑒面臨的本土化與時代化轉型需求，又反過來為國家治理之“他治”的介入提供了實踐理據。《民法典》的頒行正引領新一輪法典化浪潮，其在統一法律秩序、凝聚民族精神及拓展國際影響力方面發揮“領頭羊”作用。作為民事基本法，《民法典》既可對接憲法的實踐需求，也輻射影響著其他部門法，同時可為重大改革政策向法律文件轉化鋪就渠道，進而持續強化法律體系對實踐的有效策應力。

Since the enactment of the Civil Code, the discussions and disputes here of have always been follow the path of ''legislative theory-interpretive theory''. It's time to change the perspective of the ''interpretive theory'' and focus on how to summarize the institutional experience from the actual practice, trying to integrate it into the state governance scheme in the context of socialism rule of law system. Therefore, in order to effectively combine the individual autonomy, as the spirit nature rooted in the Civil Code, with the state governance, it is necessary to implement the concept of individual autonomy into people's daily lives, and thereupon to achieve the collaborative governance between ''autonomy'' and ''heteronomy''; The formal fairness derived from the individual autonomy will be very helpful to promote the substantive fairness, by which it will greatly simplify the difficulty of discretion, effectively control the risk of abusive discretion, and avoid the governance defects caused by the failure of formal fairness. Moreover, the need of the localization and modernization of the legislative transplanting offers the practical justification for the involvement of the ''heteronomy'' into the state governance scheme. In addition that the rule-of-law spirit of the Civil Code accords with the state governance, the Civil Code also provides new insights to the state governance in terms of the legislative technique and practical mules. The Civil Code is not only a creative activity in the field of existing law, but also a complex process of interaction, conflict and reconciliation of multiple elements behind the law, such as political ideals, national concepts, economic demands and the spirit of science. The ''codification'' of the socialist legal system with Chinese characteristics is not only the result of the impact of international trends, but also the continuation and presentation of the local tradition of the Chinese legal system. Its promulgation is leading a new wave of profound codification, and its unique value to contemporary Chinese national governance is that it plays the role of ''leader'' in unifying the legal order, uniting the spirit of the nation, and expanding the country's cultural radiation and international influence. The promulgation of the Civil Code is leading a new wave of profound codification, playing a leading role in unifying the legal order, uniting the nation spirit and expanding international influence. The compilation model of the Civil Code, which has been well accepted by the academia and the legislative body, not only contributes to unify the rules of civil code and special civil and commercial rules, but also meets the practical needs of the Constitution. Meanwhile, the Civil Code provides guidance and foundation for other legal departments and legislation hereof: The ''Green Principle'' and related provisions innovated by the Civil Code can be used in the environmental resource legislation, which highlights the role of the Civil Code as a ''public cause'' in the social governance legal system and the environmental protection area. The section of Personality Rights designed in the Civil Code offers a fundamental framework for the maintenance of rights from the perspective of the public law system and the public authority headed by the administrative organs. The Civil Code also responds in a timely manner to the needs of the market economy, and directs the way for the transformation of major national reform policies into legal documents. In particular, the Civil Code has played a direct, clear and effective role in the area of the rural land system innovation in the new era.