为私法正名

A Re-valuation of Private Law

公、私法的划分是罗马法的遗产,虽经蛮族入侵的打击,依然可以在中世纪复活,虽受自由主义的长期抵制仍能嵌入大陆法系,并在当代被世界各国普遍接受,显示了其强大的生命力。然而,对这种划分的每一次继受都伴随着权力的集中和扩张。十月革命使公法扩张、私法退却到达了它的逻辑终点,公法最终完成了对私法的征服和吞并。只有完成从自觉的法律向自发的法律、从创造的法律向发现的法律。从制定法向判例法的三大转变,才能明确私法的根本重要性,从而摆正法制建设中的公、私法关系。

As the heritage of ancient Roman law, though interupted by the barbarian' s intrusion and resistance of liberalism, the distinction between public and private law shows its great vitality by its reviving in the Middle Age and acceptance by the modem Contiental legal system, and even the whole world. However,ecah stage of its inheritance and acceptation was accompanied by the centralization and expansion of state power.The October Revolution was the logical consummation of the expansion of public law and the retreat of private law,and public law finished its conquest and annexation of private law. Only if we accomplish the revolution from designed law to spontaneous law, from cerated law to discovered law, from statutory law to presidential law, can we learn the vital importance of private law in the construction of our legal system, and put public law and private law at their respective right place.