新人文主义家庭法哲学的理论先驱和理论追求——与丁慧教授商榷

Theoretical Pioneer and Ambition of New Humanism Family Law Philosophy —— Discussion with Professor Ding Hui

新人文主义家庭法哲学与新人文主义民法哲学一脉相承,在理论准备上,通过"家庭关系主体不平等说"、"权利能力不平等论"和"民法公私法混合说",消解了"平等原则为民法基本原则"观,造成现行民法体系坍塌;在理论追求上,主张在承认其公法性的前提下实现家庭法对民法的回归,反对家庭关系的私人化,强调国家对家庭关系的介入,以达致对弱者权益之最大保护。新人文主义家庭法哲学基于对传统观念与制度之"解构"容易招致误解,但她自身的出发点和终极目标是"正义"。

The philosophy of new humanism family law is intrinsically the same as that of new humanism civil law. In theoretical preparation,through the view that family subjects are unequal,legal capacity is unequal and civil law is a mixture of public and private law,the point that equality as a basic principle of civil law is eliminated and the present civil system is broken. In theoretical ambition,the returning of family law to civil law is recognized in condition that family law has some public law nature,the private trend of family relationship is objected,the interference of state to family is emphasized,and therefore,the right of underprivileged can be protected to a largest extent. The philosophy of new humanism family law is easy to be misunderstood based on its disintegration to traditional thought and system, but its start point and final goal is'justice'.