从民法与宪法关系的视角谈我国民法典制订的基本理念和制度架构

市民社会与政治国家的分野是公、私法划分的理论基础,也是处理宪法和民法关系的主要依据。公、私法划分的实质在于它划定了一个政治国家不能插手的市民社会领域,从而为市民社会构筑了一道防御外来侵犯的坚固屏障。宪法与民法的关系不是“母子”关系。民法不是宪法的实施细则。民法应当有自己的权利体系和确立原则。民法和宪法分别是调整私法领域和公法领域的基本法律制度。

The dividing line between civil society and political country is the theoretical foundation to distinguish the public law and the private law, and it is the substantial basis to deal with the relationship between constitutional law and civil law. The nature of the division of the public law and the private law is that it delimits a field of civil society that the political country can＇ t intervene so that it constructs a firm protective screen for civil society to defend the outside aggression. The relationship between constitution and civil law isn＇ t the relationship like ＂mother and child＂. Civil law is not the rules of application of constitutional law. Civil law should have its own system of rights and the principle of establishment. Constitutional law is the basic law of the public law while civil law is the basic law of the private law. Civil law and constitutional law are the basic laws to regulate the field of the private law and the public law respectively.