摘要
我国学界普遍忽视私人自治与作为其生存环境与运行背景的私法之间的关系。私人自治与私法品性之间具有密切关联。由于实行私人自治原则,私法呈现出抽象性、目的独立性、否定性、程序性、形式性、自治性、工具理性等形式主义品性。由私人自治在民法中的基石性地位所决定,形式主义品性在私法中居于主导地位。民事立法应坚守形式主义品性,若必须创设例外,应有正当充分的理由。中国现行民法还存在着上述诸品性程度不高的缺憾,形式主义品性有待提升。
Chinese scholars of the private law ignore widely the relationship between private auton- omy and private law, which provides the existing space and functional background for the former. In fact, due to private autonomy, private law presents characters of formalism as abstract, end-- independence, negativeness, procedure, form, autonomy, instrumentality, etc. Concretely, the abstract private rules beyond specific questions provide just a framework in which individuals take actions. These rules just limit but not govern people＇s decisions. Private law has not its own pur- pose and treats all individual specific purposes as its own, so that exists as a multi--purpose in- strument. Private autonomy is a negative conception. Although negative private rules are manda- tory, they would not hurt private autonomy excessively due to their negativeness. The procedural control is of obvious superiority over the end--control for preserving the freedom of juristic act because it is founded on the theory of subjective value. Procedural private law is formal mean- time. In private law, formal obligations limit personal freedom in the minimum degree, so the pri- ority of freedom is highlighted. The value of private autonomy is conflict with the non--legal ide- as from politics, ethics, economics, to religion, which means that private law has the character of autonomy. The instrumental rationality embodies not only in all transaction fields by juristic act system, but also in the non--transaction fields, such as family and donation. So all fields of pri- vate law are full of the instrumental rationality. Private autonomy is the foundation of the private law, thus the above characters should domi- nate private law. Civil legislation should abide by the characters of formalism, and should not make exceptions easily but for sufficient and justifiable reasons. However, there are different de- fects in current Chinese civil legislation, such as declaring legislative purpose specifically in the first article, taking discrimination imprudently, the phenomenon of the general politics, etc. The characters of formalism should be improved in the future civil legislation of China.
出处
《法学研究》
CSSCI
北大核心
2012年第3期68-86,共19页
Chinese Journal of Law
基金
全国优秀博士学位论文作者专项资金资助项目(FANEDD200705)
国家社会科学基金项目(07CFX018)
中国政法大学青年教师学术创新团队资助项目的成果之一
关键词
私人自治
私法品性
形式主义
形式性
自治性
工具性
private autonomy, characters of private law, formalism, the character of form, the character of autonomy, the character of instrumentality
作者简介
中国政法大学副教授。
