清末民国民法总则编立法探赜及启示

Research and Implication on Making and Enacting the General Provisions of the Civil Law of the End of the Qing Dynasty and the Republic of China

自清季《大清民律草案》以迄国府时期《中华民国民法典》,近代中国共拟定了三部民法典草案。然政潮汹涌,法典或胎亡或迁徙。民法总则内容结构亦几经递嬗,法政硕彦们在传统与西潮间衡酌,于欧陆诸国体例间取舍。杂糅德、日、瑞等多国现制,结合本土实践,甚至有所创造。尤其国府时期,为民商合一立法模式下民法总则内容结构之安排提供了典范。综合立法政策、司法经验、外国专家建议、法学菁英的学述等因素,最终形成以德国民法为基础,兼采日本、瑞士、苏俄等近世最新民法之长的总则体例。相较于欧陆老师并不逊色,或可称为为比较民法之集大成。虽然民法典未能落实于实践,但近代法政硕彦的智识贡献与体例创制,仍可垂范当下。

From the Draft of Civil Law of the Qing Dynasty of the Qing Dynasty(1644 – 1912) to the Civil Law of the Republic of China of the Republic of China(1912 – 1949), modern China drafted and enacted three drafts of the civil law in aggregate. However, the law did not come into effect at the beginning of its birth or changed due to serious political unrest. The content and structure of the general provisions of the civil law have evolved many times. And excellent scholars of law and politics weighed and thought over between the tradition and the modernization, selecting among systems of European countries. They mixed current systems of many countries including German, Japan and Switzerland, in combination with the practice of China, and even making innovations. Especially the period of the Republic of China, setting good examples for arranging the content and structure of the general provisions of the civil law under the mode of commercial law contained by the civil law. Absorbing elements including legislating policy, judicial experience, suggestions from foreign experts and law elites, the general provisions of the civil law are eventually made on the basis of the civil law of German, also taking advantages of the recent civil law of Japan, Switzerland, Russia and other countries. The civil law of China at that time was no worse than that of European countries, which can be regarded as epitomizing comparative civil law. Although the civil code did not come into effect in practice, the wisdom, contribution and systematic innovation of modern excellent scholars of law and politics can still be good examples of today.