现今中国民法典编纂借鉴德国民法典的几点思考

Thinkings on Compilation of the Civil Code of China by Taking Civil Code of Germany for Reference

当代中国，包括大陆、台湾和澳门的法制实际都是在借鉴和继受大陆法系法制，特别是德国法制的基础上建立的。无论从法律传统还是从现实情况看，我国目前正在进行的民事立法及将来的法典编纂没有特别的理由偏离这一既定取向。当然，这并不排除在具体规则和制度上借鉴吸收英美法系法制内容，以补充和完善整体法制。在此过程中，有两个基本而重要的制度及其理论直接涉及德国法制，即：民商分立和物权抽象原则。根据历史和现实的考察以及对民商法特征的分析，我国未来的民法典编纂仍应采取民商分立的模式，而且这实际已是一种现实。至于在德国国内始终存在很大争议的物权行为理论或抽象原则，我们则不应完全照搬，而要从中寻取启发，在此基础上根据我国的实际情况和我们自己的思路，建立一种较容易理解、较接近实际生活和便于操作的物权理论及其相应制度。

The legal systems in China, including those in the Mainland, Taiwan and Macao, have actually drawn reference and derived from civil law systems, and particularly established on the basis of Germany legal system. From the angle of legal tradition and reality, there is no particular reason for the undergoing civil law legislation and future compilation of code to sway from this fixed tendency Of course, it does not exclude accepting and making use of the subjects of Anglo - American legal systems with respect of concrete regulations and system in order to supplement and perfect the legal systems as a whole. In this process, there are two basic and major systems and their theories directly involve German legal system, that is separation of civil and commercial code, and abstract principle of right in rein. In terms of historical and realistic investigation and analysis of the particularity of civil and commercial code, the model of separation of civil and commercial code should be adopted in the compilation of future civil code in China. Moreover, such is the reality. As to the theory of juristic act of right in rein or abstract principle that are always controversial in Germany, which should not be indiscriminately copied. Instead, inspiration should be sought. On the basis of it, the theory of juristic act of right in rein and the relevant systems which are more easily to be understood, more close to reality all easily to be operated should be established in terms of the actual condition of China and our own way of thinking.