中国民法继受潘德克顿法学:引进、衰落和复兴

The Adoption of Pandekten Jurisprudence in China's Civil Law:Initiation,Decline and Revival

中国1992年明确宣布建立社会主义市场经济体制之后,开始了大规模的制定民法的工作,现在有必要对于民法立法技术层面的问题予以认真的思考。中国一百多年之前变法时,就已经引进了潘德克顿法学,以后还按照这一科学方法编制了自己的民法典。但是此时只是继受了潘德克顿法学的外在制度体系,即立法规则和语言体系;而没有继受其内在体系即思想体系,也就是支持这些制度体系的近现代法律人文主义思想。在上个世纪50年代大规模引进苏联法学之后,中国法对于民法人文主义思想和技术规则不但没有积极理解,反而采取批评的态度,以至于民法的规则体系被摧毁。这种法律思维一直没有认真清理过。由于市场经济体制的成功,民法作为市场经济体制下的基本法的地位,会在中国得以确立;民法中公民权利观念,会成为社会的共识;民法中的规则体系,比如支配权和请求权作为基本民事权利的划分、法律行为理论和制度、交易中的权利变动制度等,都会逐渐建立和完善。潘德克顿法学在中国正在走向复兴。

From 1992, when a socialist market economy was explicitly declared as the goal of reform, China started large-scale drafting of civil law. It is now time to have a serious look at issues concerning legislative techniques. More than a century ago, during its period of reform, China already introduced Pandekten jurisprudence, and subsequently drew up its own civil code on this basis. But this introduction involved only the external institutional system, namely legislative rules and the system of language, while the internal system, i.e. the modern legal humanism underlying the external system, was forsaken. After the massive importation of Soviet law in the 1950s, Chinese law did not value humanist thought and technical rules in civil law; on the contrary, these were criticized, to the extent that the system of rules in civil law was destroyed. This sort of legal thinking has never received seriously consideration. Due to the success of the market economy, the status of civil law as the basic law under the market economy will become established in China; the idea of people's rights will become a matter of social consensus; and a system of rules, including the division between right of dominion and right of claim as fundamental civil rights, theories and institutions related to legal acts, and a system of change of rights in transactions, will be gradually established and perfected. In a word, Pandekten jurisprudence is staging a comeback in China.