婚姻家庭法与民法典关系之我见——兼论婚姻家庭法在我国民法典中的实现

My Views on the Relationship between Marriage and Family Laws and Civil Code: Analysis on the Realization of Marriage and Family Laws in the Civil Code of China

婚姻家庭法作为民法的核心内容应该在我国未来的民法典中得到充分体现。作为具有强烈伦理要求和浓厚人文主义精神的法律制度,婚姻家庭立法应将伦理道德优先、以人为本、遵从习惯、适度干预和适度超前与相对稳定相结合等作为基本的法律原则。对于具体的立法体例,在坚持单一民法典立法模式的前提下,将有关自然人的一般规定与人格权、婚姻、家庭等内容混编在一编中以"人法编"命名。在立法方式上,我们既要积极引进国外的先进理念和先进制度,兼收并蓄、吸收创新,又要立足本国国情,发掘传统制度资源,凝聚民族智慧,以制定出一部能够同时容纳古代文明、近代文明和现代文明,兼具形式理性和实质理性,具有普适性、辐射性和可复制性的中国版民法典。

Marriage and family laws are the key contents of civil law, which should be fully reflected in the Civil Code of China. Marriage and family laws are featured by ethical requirements and deep humanism concern. Accordingly the legislation of marriage and family laws should give priority to ethics and moral principles. In addition, it should follow other basic legal principles, e.g. the people -oriented principle, compliance with customs, appropriate interference, moderate forward thinking, and relative stability. With regard to specific legislative systems, the legislation of marriage and family laws should take the legislative model of single civil code as the premise; while the model in which marriage and family laws are put on a par with the Real Right Law and the Law of Obligation should not be followed. The legislation of marriage and family laws could follow the Burgerlijk Wetboek （the Dutch Civil Code） in which human law and family law are compiled together. It could also follow Code civil des Francais （ French Civil Code） in which thegeneral regulations about natural person are compiled together with personality right, marriage, family and some other contents in one Part - Human Law. The legislation should not only actively assimilate advanced concepts and systems abroad but also proceed from the actual situation of China to explore the traditional institutional resources. The Chinese version of Civil Code should fully embody the wisdom of Chinese nationality which could accommodate ancient and modem civilizations, formal rationality and substantive radioactivity and reproducibility. rationality, and be characterized by universality,