论公法与私法的划分及其对我国民法的启示

罗马法上划分公法与私法有着政治、经济等多方面原因,但其真正目的仅在于法律研究的便利和安全,而不在于限制公权力对私权利的随意干涉。用历史的眼光来看,公法优位的观点与私法优位的观点皆不足取,而现代公法与私法的融合也并未使二者的划分失去意义。公法与私法的关系与地位问题在社会主义国家的发展轨道有所不同。就目前而言,私法在我国应当具有更加优越的地位。在探讨制定公法性民事规范的合理事由时,必须要证明某些价值相对于意思自治而言具有基础性意义或者更加重要的意义。

There division of public and private laws in ancient Roman law was attributable to several reasons, such as political and economic ones, but the real purpose of the division was for the convenience and safety of legal research, instead of restraining the arbitrary interference by public power in private rights. In terms of historical development, neither the theory of priority of public law nor the theory of priority of private law is acceptable, and the integration of contemporary public law and private law has not rendered the division insignificant. The relationship and status of public and private laws in socialist countries has undergone a different development. Now in China, private law ought to have a higher priority. When discussing the reasonable occasions about establishing civil norms of public law character, it is necessary to prove that some values, as compared to autonomy of the will, are of fundamental significance.