身份行为效力判定的法律基准——在身份法理念和身份法规范之间

The Legal Benchmark of the Judgement on The Effectiveness of Identity Behavior: Between the Concept and Regulations of Status Law

民法学上关于身份行为的概念、属性和效力等诸问题,学者均有不同认识,整个民法研究领域的基本状态是重财产法研究,轻身份法研究。身份法领域亦是如此。法律行为已然是婚姻、收养、继承等身份行为的理论抽象,身份行为的概念做广义的解释更符合身份法制度和体系的总体要求,又与社会的一般理念相吻合。对身份行为之效力的判定,应从身份法的目的性价值、善良风俗原则、强行法规范等角度进行谨慎的考量,同时衡平机制的植入乃至效力层级的划分,都有助于实现国家对私人领域意思自治的有效调控和适度限制,以期达到理论上澄清和实践中指导的研究目的。

The scholars have different understandings on issues such as concept, characteristics and effectiveness of identity behavior in civil law. The general situation of the research in civil law is that more attention is paid to study the property law and less attention to study status law. The same situation occurs in the research of civil law. As the concept of legal act is already the abstract theory of the identity behavior such as marriage, adoption, inheritance, the broadly construed concept of identity behavior will be more in line with the general requirements of the status law system, and also be in accordance with the general philosophy of society. The effectiveness of identity behavior should be prudently determined from the perspective of purpose value, principle of good morals and jus cogens norms of status law, as well as the implanted equitable mechanism and the division of the level of effectiveness, which will contribute to government＇ s effective regulation and appropriate restrictions on the private autonomy of will, so as to achieve the research purposes clarifying the theories and guiding the practice.