民法典制定中的国家与国库问题研究

Research on the Issues concerning State and Fiscus in the Process of Enacting the Civil Code

当前,在民法典制定过程中,如何安排国家的位置,变成一个现实的问题。作为重要的民事活动参与者,国家在参与民事活动中的法律地位并不明确。国家参与民事活动,涉及的主要是财产法律关系,因此,国有财产的权利主体属于国家土地所有权、国有企业等概念的前置性问题,值得深入研究。在德国法上,这个问题主要由国库理论来解答。在参与民事活动之时,国家以国库的面相出现:国家经由国库而受到私法的规制;但是,国家以国库的身份"遁入私法"并不使其获得自治权,其服务于公共利益的本质、国家受法律规制的必然性,不受到影响。国家与国库本质为一体,是一个统一的法人。只有确立了国家的法人地位,国家参与民事活动才有落脚之处,国家民事责任、司法管辖权以及国家经济活动的边界等问题才有解决的可能。因此,我国民法典应当对国家和国库的法律地位加以规定。

In the process of enacting the Civil Code, how to regulate the state becomes a real problem. As a principal participant in civil activities, the legal status of state is not clear. The legal relationship of property has been involved when state participates in the civil activities, certain prepositive issues concerning the national land ownership, state-owned enterprises, etc., need to be further researched. In German law, this question is mainly answered by the fiscus theory. When the state participates in the civil activities, the state will be deemed as the fiscus, which is the identity of the state. Though the identity of the state is substituted by the fiscus, the state does not achieve autonomy, the nature that the state should serve the public interest and the necessity that the state should be under legal regulations will not be affected. The state and the fiscus are essentially the same, they are a unified legal person. Only when the state has been deemed as a legal person, the state participation in civil activities could be logically consistent, and the following problems, such as the civil liability of the state, the issues of jurisdiction over conflicts between state and private person and the boundary of state economic activities, will be solved. Therefore, the legal status of the state and fiscus shall be stipulated in the Civil Code.