论民法总则与婚姻法的协调立法——宏观涵摄与微观留白

On Legislative Coordination of General Provisions of Civil Law and Marriage Law——Macro-Inclusion and Micro-Discretion

在肯认婚姻法属于民法典组成部分的前提下,进一步明确婚姻法与民法总则之间的内在逻辑,辨析婚姻法律制度与民法总则具体制度之间的同异,以期应用于民法典的起草工作。在意旨上,民法总则通过界定调整对象、规定基本原则和阐释价值理念对婚姻法进行涵摄和指引。在体例上,身份法与人格法的分离是民法总则得以构建的重要前提,而身份法与财产法之间的实质性差异也决定了婚姻法的独立自洽是必然的。整体而言,两者的协调立法,需要民法总则有自省式的定位,而婚姻法则有选择性的出位。就条文设计而言,民法总则在界定调整对象、规定基本原则时应充分考虑婚姻法的制度特性和立法诉求。

The discussion on relations between marriage law and general provisions of civil law is based on the premise that the former is part of the latter,which aims to clarify their internal logic and to define similarities and differences between their specific rules so as to help draft the civil code. On a conceptual level,general provisions of civil law should include and guide the marriage law by defining regulatory objects,formulating fundamental principles and interpreting core values. As to systemic arrangement,general provisions of the civil law are prescribed on a cornerstone of separation of the law on status and that on personality. The substantial difference between status law and property law has determined that the marriage law is inevitably independent and self- consistent. In short,in order to achieve the legislative coordination,legislators on general provisions of civil code should keep an introspective positioning,while legislators on marriage law should have the courage to selectively make a breakthrough. As to specific provisions,legislators should consider the features and legislative pursuit of the marriage law in defining regulatory objects and fundamental principles of general provisions of civil code.