权利能力的双重角色困境与主体资格制度重构

Legal Capacity's Double Roles Dilemma and Re-construction of the Corpus Qualification System

权利能力意在打通理性、主体、权利三者之间的联系,并使得私法自治成为可能。新型主体的不断涌现使得理性作为主体的唯一根据已不敷使用;权利能力兼具主体资格和权利资格双重角色也左支右绌。权利能力应当角色唯一化,仅承担权利资格之角色,另将主体资格独立出去。私法主体之根据应当分为目的性根据和工具性根据,分别适用于生物人和团体。私法主体制度应当具有开放性,以适应人和社会经济发展的需要。Legal capacity tends to get through the connection of rationality,subject and right and makes autonomy of private law possible.The emerging of new types of subjects makes it too limiting to take rationality as the only basis of private law.Legal capacity,which plays the double roles of corpus qualification and right qualification,is in a tight spot too.Legal capacity shonld play the only role of right qualification and disassociate the corpus qualification.The basis of the private law subject should be differentiated to objective basis and instrumental basis which separately apply to biological persons and groups.Private law subject system should be an open system,so that it can adapt to the development of person and social economy.

Legal capacity tends to get through the connection of rationality,subject and right and makes autonomy of private law possible.The emerging of new types of subjects makes it too limiting to take rationality as the only basis of private law.Legal capacity,which plays the double roles of corpus qualification and right qualification,is in a tight spot too.Legal capacity should play the only role of right qualification and disassociate the corpus qualification.The basis of the private law subject should be differentiated to objective basis and instrumental basis which separately apply to biological persons and groups.Private law subject system should be an open system,so that it can adapt to the development of person and social economy.