婚姻家庭立法的同一性原理——以婚姻家庭理念、形态与财产法律结构为中心

Principle of Identity of Legislation on Marriage and Family Law

从传统到现代社会,中国人的婚姻家庭理念、形态与财产法律结构发生了巨大的变化,有关婚姻与家庭的观念与生活呈现多元的状态。婚姻不再具有在古代那样的当然的意义,但仍然被视为男女结合的主流方式;单一的宗法意蕴已经转变为传宗接代与生育乃至不生育并存;婚姻仍然具有联姻的功能,只是其重心与往昔已有根本的不同,那就是两个姻亲家庭都要服务于新建立的小家庭,但中国人内置于婚姻家庭中的人生意义追求并没有改变。不论在农村还是城市,夫妻关系都成为家庭关系的主轴,传统的家庭同居共财制为夫妻财产制所取代。夫妻内部的财产关系、与扩展家庭的关系和与双方父母的关系分别受到挑战,但传统的共同、协助、孝道以及男女平等的新传统仍然是人们尊重的价值,对此立法者应有足够的尊重。

In the transition of China from a traditional society to a modem society, the idea and property law structure of marriage and family have undergone tremendous changes and the , form, Chinese people＇ s ideas and life relating to marriage and family have become increasingly diversified. The mar- riage no longer has the inherent significance as that in ancient times, but is still regarded as the main- stream mode of union of man and woman. The single patriarchal significance of marriage has been transformed into the coexistence of the significance of carrying on the family line, the significance of pure procreation and even non-procreation significance. Today, although marriage still has the func- tion of forming an alliance, its emphasis is fundamentally different from that in the past ： the two in- law families must both serve the newly established small family. Yet, the meaning of life pursued by the Chinese people in marriage and family has not changed. Whether in rural or urban areas, the rela- tion between the husband and the wife is the axis of a family. The traditional system of cohabitation and owning property jointly is replaced by the matrimonial property system. The property relationship between the husband and the wife, the relationship between a couple and their expanded family, and between a couple and their parental families are all faced with challenges, while the tradition of com- munion, assistance and filial duty and the new concept of equality between man and woman are the common value respected by the Chinese people.