《中华人民共和国物权法》的立法技术分析

Analysis of the Legislative Techniques of the Real Right Law of PRC

《中华人民共和国物权法》的颁布施行可以视为建国以来最为著名的法制事件之一。在立法技术上,它取得的成绩有目共睹,主要表现在:在结构形式上采用了总则、分则、附则的营造模式,与《物权法》二百余条的规模而言大体协调和谐;体系较为清晰,内容充实,文字凝炼,少有虚言。但其立法技术上的缺陷亦同样明显,具体表现在:其一,总则中基本原则用语和范围失当,原则与规则不分;其二,不谙概念使用规则,一方面有应使用概念而未使用概念之处,另一方面又存在对已经下定义的概念却未能很好利用的情况;其三,语言文字瑕疵随处可见;另外,还存在调整范围不明、条文不均、违背一条一义等诸多技术性问题。造成这些技术问题存在的重要原因之一在于物权法的起草工作为民法学界所垄断,未能重视起草小组成员全面的重要性,未能实行开门立法。

The enactment and enforcement of the Real Right law of PRC can be regarded as one of the most famous legal events since the foundation of our country. The achievements it has gained on the legislative techniques are obvious to all and mainly reflected as： adopting the structure frame of general, specific and supplementary provisions, which matches the scale of the law over 200 clauses; being clear in configuration, substantial in content and refined in language. However, its defects in legislative techniques are obvious as well and can be reflected as： firstly, it has a misuse and inappropriate scope of the word ＂basic principles＂, confusing the principles and the rules. Secondly, it is unsophisticated at the rule of using concepts. On the one hand it does not use the concept where necessary and on the other hand it does not make full use of the concept which has been defined. Thirdly, the flaws of the language and wording are found here and there. Finally, there are other legislative problems, such as ambiguous adjustment scope, unbalanced clauses, violation of the rule of one clause one meaning and etc. One of the most important causes to such technical problems lies in the fact that the drahing task of the real right bill is monopolized by the scholars of civil law instead of emphasizing the comprehensive composition of the drafting team to realize an open legislation.