再论中国亲属法的立法价值选择——在民法典起草和制定的语境下

A Re-examination on the Legislative Value Selection of Chinese Family Law:From the Derspective of Drafting and Making of Civil Code

我国一直致力于建立一套新型的婚姻家庭法律制度。亲属法先后发生了三次重大变革,亲属法学作为婚姻家庭法律制度和法律现象的理论凝练,就不可能不重视其与社会变迁之间的关系,婚姻家庭法治应以回应社会现实为己任。关于亲属法在回归民法典的路上如何保持自身的特性,立法价值选择是一个重大问题,应予厘清和重视。作为分支体系的亲属法在价值取向上与民法典具有一致性,但只是其中的一面,兼具社会法的属性,对家庭和意义的强调应超出对个人主义的主张。

China has been committed to establishing a new marriage and family legal system. Family law, as a theoretical concentration of marriage and family legal system as well as a phenomenon, has a close relationship with social changes. The rule of marriage and family law should take the duty of responding to the social reality. Also, family law, as a branch of the marriage and family law, has consistency with civil code in legislative value orientation. However, with the attribute of social law simultaneously, this legislation orientation only reflects one side of the attributes of family law.