罗马私法拟制研究

On Legal Fictions in Roman Private Law

私法拟制系罗马私法,乃至现代私法上都极为常见的法律现象。罗马私法藉由拟制而实现了对既定私法规则的柔性突破,并促成了私法的有机发展。罗马私法拟制蕴含自然法与实在法二元化思考的价值因素,同时也包含地方论与决疑术的方法因素;此外,罗马私法教义拟制还在法典化背景中具有体系整合与价值宣示功能。

Legal fictions of private law is a common phenomenon in Roman private law, even in modern private law. Depending on legal fictions, Roman private law is able to break through the obstacle from original rules flexibly, and acquires organic development. Legal fictions of Roman private law is based on the idea of distinction between natural law and positive law, meanwhile, it is the product of the theory of topics and legal casuistry. In addition, dogmatic legal fictions of Roman private law owns the function of integration to legal system of private law and propagation to some values.