民事立法形式之忧

Concerns about the Form of Legislation on Civil Laws

历史地看,"法典"与法表、刑鼎等一样,都属于早期成文法的表现形式,且其得名与使用的材质关系密切。近代以来,尤其是二战之后,为了因应社会经济形势的变迁,民事单行法或特别法游离于法典之外几乎成为一种趋势。此时继续保留相当程度上被掏空了的法典的民事法律母法的名义,其意义究竟何在,不无疑问。编纂民法典,对于中国的立法机制和法律适用传统都是一种挑战,新的法典与之前既存的民事单行法的关系究竟有何不同,如何协调其与过往前数十年间基于民事单行法所形成的法律运作体系的关系,如何确保后者不因新法的制定而被割裂、舍弃,都是需要认真讨论的问题。

Historically speaking, as an early form of statutes, ＂code＂ was named from its materials on which it was written similar to table and metal tripod. In modern times since the World War II and as the so- cial economy evolves, it has become a trend that particular or special statutes of civil law have deviated from the civil code. Thus doubts arise over the significance of the civil code as mother law since its substance has been depleted. Nowadays, the compilation of the civil code in China would be a great challenge for both legis- lation and application of law. In specific, several problems should be solved such as what are differences be- tween the new code and the existed special statutes; how to coordinate the new code with the previous legal system which has been performing for decades; and how to ensure the previous system would not be split or de- serted by the new code.