民法本质追求探究

Essence of Civil Law

作为部门法的民法,源自古代欧洲的罗马法,当时叫“市民法”,后被注入“私法”、“私权法”、“市民社会的法”等诸多信息。中国通过日本从西方民法及至罗马私法那里继受了作为表征基本部门法的民法。西方传统理解民法或私法的实质含义,是在个人与国家对立的基础上进行的。民法以人为中心,以权利为基点,以行为手段,以责任为保障。民法上的人即市民、私人和私主体,含自然人、法人、非法人团体等。近代社会的个人是个人主义的个人,而现代的个人是兼顾社会乃至自然理念中的个人。称民法人是“经济人”、“具体人”、“抽象人”等多是用作分析民法问题的方法。兼顾社会乃至自然的个人主义和自由主义是民法的哲学基础。民法并未真正社会化。民法所涉及的领域是有限的。民法在精神方面追求平等和自由。这些都涉及到民法本位即民法的中心任务和价值标准问题。

Being a branch law, civil law originates from ancient European Roman Law, which was called jus civile and later it absorbed lots of the elements of ＂private law,＂ ＂private right law,＂ ＂civil society law,＂ etc. Civil law, which is apparently a basic branch law, was introduced into China from western civil law and jus privatum via Japan. In western traditional theory, the essence of civil law or private law is based on the opposition of individuals and the state. Civil law focuses on human beings, and is based on rights, and assumes acts as means and considers duties as protection. The person in civil law is a citizen, an individual, and a private person that includes a natural person, a legal person and a nonlegal-person body. In modern society, an individual means an individualistic person, while in contemporary society, an individual means a person with social and natural characteristics. A person in civil law is often designated as an ＂economic person,＂ a ＂specific person＂ or an ＂abstract person＂ while people are analyzing different civil law questions. Individualism and liberalism that concurrently concern society and nature underlie the philosophy of civil law. However, civil law has not actually socialized. Its domain is limited. Spiritually, civil law intends to pursue equality and liberty, all of which are concerned with the essence of civil law, i.e. the main tasks and values of civil law.