作为宪法实施法的民法——兼议龙卫球教授所谓的“民法典制定的宪法陷阱”

Civil Law as Implementation Law of Constitution

人权概念的匮乏与宪法实施理论的缺位是私法发达的障碍。民法之于宪法的任务这一重要命题在过往的讨论中未得到充分注意,致使民法与宪法关系之争长久不衰,难以形成定论。对市民社会概念的过分依赖阻碍了宪法高于民法的认识,私权的宪法基础被遮蔽。形式法治的核心要素授权与规范效力理论被严重忽略,民法之于基本权利的形成任务视而不见,法院实施基本权利具体化其内涵的空间难以拓展。设若不在人权保护与宪法实施双重脉络下解读民法,孤立的私法概念将成为民法的方法论陷阱。

It is an obstacle for private law development without human rights concept and enforcement theory of constitution. The thesis for what is the task of civil law for constitutional law had never been fully discussed over the past time, It is difficult to make a conclusion as to the dispute over the relation between civil law and constitutional law. Excessively depending on the concept of civil society has hindered the idea that constitutional law is superior to the civil law, the constitutional founda tion of private rights has been covered. The grant and effect theory, which is the core element of formal rule of law, has been severely neglected, the task of civil law for the formation of fundament rights has long been ignored, it is hard to enlarge the sp^e＇e in which the court could specify the connotation of fundamental rights through enforcing them, isolated private law con cept＂witl be the methodological trap of civil law. Without reading civil law in the double context of human rights protection and constitutional enforcement, the private law solely will be the methodological trap to civil law.