论走向法典化的网络法律体系建设

On the Construction of the Cyber Legal System towards the Codification

法典化是消解网络法条碎片化、法条竞合冲突等问题的一条可靠路径,也是推进中国网络空间法治化的必由之路。网络法法典化可行性的理论基础在于法典化思潮的形成、网络法学学科的确立、学术研究队伍的壮大;其可行性的制度基础在于网络法治受到国家高度重视、网络法治基本制度逐渐成熟、网络法体系化基本经验形成。现阶段应以汇编型法典为目标,对标法治中国建设划定的网络法治建设总目标,实行先易后难策略,以网络法的体系化为突破口,理顺各个单行法律之间的位阶与关系,以《网络安全法》为主体,通过立、改、废、释等立法方法,有步骤地推进网络法的法典化。网络法不是现代部门法的理论增补,也不是现有部门法的新兴分支,而是现代部门法适应网络时代变革发展的转型升级。

Codification is a reliable way to solve the problems of the fragmentation and concurrence of cyber law rules, and it is also the only way to promote the rule of law in cyberspace in China.The theoretical basis of the feasibility of the codification of cyber law lies in the trend of codification thought, the establishment of the discipline of cyber law, and the growth of the academic research team.The institutional basis of its feasibility lies in the cyber rule of law being highly valued by the state, the gradual maturity of the basic system of the cyber rule of law, and the basic experience of the systematization of the cyber law.At the present stage, we should take the compilation code as the goal, and suggest that, according to the overall goal of the cyber rule of law construction defined by the Construction of the Rule of Law in China and the easy-before-difficult strategy, we should straighten out the rank and relationship among the individual laws with the systematization of the Cyber law as the breakthrough point, “and promote the codification of cyber law with “Cyber Security Law” as the main body step by step through legislative methods such as legislation, modification, annulment and interpretation.Cyberlaw law is not a theoretical supplement to the modern department law, nor is it an emerging branch of the existing department law, but the transformation and upgrading of modern department law to adapt to the reform and development in the network era.