民法中的强制性规范——兼论公法与私法“接轨”的立法途径与规范配置技术

On the Mandatory Norms in Civil Law :Also Concerning the Channels of Legislation and Norm Allocation Techniques Through the "Convergence"of Public Law and Private Law

立法者应妥当处理宪法与民法、行政法与民法、普通民法与特别民法、民事实体法与民事程序法以及民法典内部各种规范之间的关系,通过部门法的合理分工与互动来实现公、私法的"接轨"。宪法中的规范和纯粹行政法的规范是前置型强制性规范,不宜安排到民法典内部;为实现特定公共政策目标的强制性规范是外设型强制性规范,应安排于民事特别法和行政法规中;为自治的私法行为设定最低法律要求以及铺设通往公法管道的强制性规范为内设型强制性规范,应安排在民法典内部。

To accomplish the task of the ＂convergence＂ of public law and private law by legislation, legislator should properly deal with the relationship between the constitution and the civil law, the administrative law and the civil law, the general civil law and the special civil law, the civil substantive law and the civil procedure law as well as the relationship between different norms in the Civil Code. In the whole legal system, we should reasonably divide the law into different sectors to achieve a harmonious interaction between public law and private law through the ＂convergence＂ of them, among which, the constitution and the norms which are purely administrative law are the prerequisite mandatory norms. These norms are not appropriate to be included in the civil code, thus they should be retained in the constitution or in the administrative law. To achieve specific public policy objectives, the mandatory norms outside the civil law should be special arrangements in the civil and administrative law regulation, and they are also not suitable to be included in the civil code. The mandatory norms which set minimum requirements for autonomy civil law, as well as the mandatory norms which lay the pipeline leading to the public law should be included in the civil code.