民法法典化之反思

An Analysis of Historical Reasons of Civil Code

目前 ,中国正准备使自己的民法法典化 ,无论学术界 ,还是立法界 ,绝大多数人都呼吁中国早日制定自己的民法典。在论及制定民法典的原因时 ,却往往忽视法律统一对其的影响。实际上 ,从大陆法系各主要国家制定颁布民法典的最直接、最现实的目的来看 ,都是基于对已有分散的法律进行统一的需要。然而 ,目前的中国不仅是一个政治统一的中央集权制国家 ,而且宪法也赋予了立法机关集中的立法权 ,从而确保了多年来所制定的民事单行法必然是统一的。基于此 ,笔者认为 ,虽然目前中国的民事单行法数量众多且冲突不断 ,但其在某一特定的民事领域仍是统一的 ,加之伴随着民法的调整范围日益扩大 ,传统的民法典体系亦不能包容一切的现实 ,因此 ,中国应维持目前的民事单行法现状 ,实无必要进行民法的法典化。

China is under the way to codify her civil laws. A majority of people, either from the academic or law-making field, are appealing that China should issue her own civil codes as soon as possible. When discussing the reasons for making and issuing civil codes, they often neglect the great impact of the integrity of laws on it. In fact, after surveying the most direct and realistic purpose of the civil codes made and issued in many continental countries, the author of the present paper finds that they are based on the need to unify the already-existing scattering laws. However, today China is a politically integral country with centralized power system; moreover, the Constitution of China has empowered the law-making body a centralized law-making power, which inevitably ensures the integrity of the special civil laws since their issue many years before. Based on the above reasons, the author believes that although the number of the present special civil laws is numerous, even sometimes conflicting in some specific civil field, they are still integral. In addition, with the ever-expanding scope of the adjustment of civil laws, the traditional civil code system can not contain all aspects in real practice. Therefore, China should maintain the present situation of the special civil laws, and there is no need to codify its civil laws.