論民法總則的大破大立

On the Major Desruption and Establishment of New General Principles of Civil Code

我國民法典自一九二九年頒行至今，其間雖有修正，但是否足以因應社會變遷，實有疑問，欲以此部民法典建立臺灣社會之法治基礎，更嫌不足。本文以為，民事法規範實有重新思考之必要，且與其大幅修正現行民法，不如走大破大立之路。所謂大破大立，亦即棄舊立新，大幅棄置民法典若干規定，僅保留具有價值之民法架構與法學專門用語，再建構新思維，而制定新舊合體的新一代民法典。因此，本文針對現行民法總則的法例規定（包含民法之法源、簽名蓋章，及文字與數字表達不一致等部分），以及其他部分（例如：民法之主體、客體、法律行為等）進行檢討，並提出應有面貌之立法建議，以期建立一化繁為簡，簡單可用之新民法典。

Even though amendments have been made several times since its enforcement in 1929, whether the amended Civil Code has responded to the social changes is still doubtful. Furthermore, the current Civil Code does not suffice to be a solid foundation for establishing the rule of law in Taiwan. This article argues that there is a need to review the Civil Code and believes that instead of substantially amending the existing provisions of the Code, it is better to take the path of major description and establishment. In other words, some provisions of the Code should be discarded and only valuable framework and jurisprudential terminologies should be retained. Subsequently, a new thinking will be applied and a new generation of the Civil Code that integrates the old and the new will be created.Hence, this article focuses on reviewing the provisions of the General Principles of the Civil Code (including the legal sources of civil law, signatures and seals, and inconsistencies between textual and numerical expressions) as well as other parts (e.g., the subject matter, objects, and legal transaction). The author further provides legislative proposals with a hope to establish a new Civil Code that is simple and usable.