在民法典与传统规则之间——中华民国最高法院的抉择

Between civil code and traditional regulations——The choice of Higher Court in the Repubic of China

1930年,《中华民国民法典》成为中国历史上第一部正式颁布实施的民法典。这同时意味着,在南京国民政府所辖区域内的各级法院,将以这部民法典作为裁断民事案件的依据。那么,处于新旧交替之际的裁判者面对那些深受传统规则和习俗影响的案件时,会如何抉择呢?本文以最高法院1936年至1947年间关于“分家”、“立嗣”、“继承”等案件的判决为分析对象,展示裁判者的理念:是向传统规则妥协、迁就传统,还是严格按照法典的规定,尽可能地用近代法的原则和制度改造、引导传统?以及裁判者的理念对当事人权利的影响。以期对今天的民法典编纂及过度时期的司法裁判提供一点历史的视角。

In 1930,＂ The Civil Code of the Republic of china＂ was published as the first code of Chinese history to officially issue and implement. At the same time,it meant that all grades of courts in all areas controlled by the Nanjing National Government would use the code to consider and decide the civil code. Then, in the period of the new replacing the old, facing the cases which were affected deeply by the traditional regulations and customs, how could judges make a choice？ This thesis uses the court decision of these cases ＂dividing up the property and live apart＂ ＂adopting a child from the relative＂ and ＂heritage＂ which happened in the higher cout from 1936 to 1946 as an object to analyze and show the idea of judges ： whether to make an concessions by way of compromice of traditional regulations or to obey the regulations of the code strictly and use the prieiples and systems of the modern law possibly to guide and reform traditions;the influence of judge＇s idea on the rights of litigant. It expects that it will provide a historical angle for the compile of today＇s civil code and the decree in a period of transition.