民法现代化抑或经济法的兴起——民法与经济法分野之争

Civil Law Modernization or Economic Law Rise——Division Dispute on Civil Law and Economic Law

随着自由竞争发展到垄断,近代民法的所有权绝对、契约自由和过失责任的三大原则受到挑战,民法学界积极回应这种挑战的结果便是民法现代化理论的创新。然而,民法现代化理论使得民法自身陷入自我否定的危险境地。对此,经济法的兴起刚好承接了民法现代化无法承受之重,成为现代市场经济下国家调节社会经济的重要法律部门。

Developing from free competition to monopoly, civil lawns three main principles, ie abso- lute property, freedom of contract and fault liability, are being challenged. The result of the active re- sponse from the civil law field to the challenge is theoretical innovation of civil law modernization. However, the civil law modernization theory has put civil law itself in danger of self-denial. In re- sponse, the economic law rise just undertakes the important legal department for the state to adjust burden that civil law cannot bear, and has become an society and economy in the modern market economy.