西方文明与东方知识:《菲律宾民法典》的法文化解释

Western Civilization and Oriental Knowledge: An Explanation of Civil Code of the Philippines from the Perspective of Legal Culture

在菲律宾被发现之前,它并无成体系的法律,是西班牙为它带来了罗马法,美国为它带来了普通法。菲律宾后来在自己制定民法典时积极拥抱西方,以基督教价值观为指导,试图将二者融于一身。但这种无视菲律宾伊斯兰信仰以及菲律宾土著本土法的做法,最终引来强烈社会反弹。所以自20世纪70年代末开始,其在民法典之外另行颁布的穆斯林人身法、家庭法典、土著人民权利法案均旨在矫正历史不公。现在看来,持续百年的菲律宾民法典制定与修正很像一座民族走廊,罗马法、普通法、伊斯兰法、土著法接续发挥着影响,这无不启示,事关市民生活全领域的民法典制定应慎重对待全球化与本土化之争。以此为鉴,我国民法典的制定在立法政策的取舍上,在市场交易法的领域应以采用普遍性的规则为方向,在家庭法和物权法的领域以中国传统为根基。

There were no systemic laws and regulations in Philippine before it was discovered. Roman law was brought in by the Spanish while common law by the American. Later,Philippine tried to reconcile both of them under the guidance of the values of Christianity while drafting its own civil code. However,without considering its Islamic beliefs in southern Philippine and the indigenous laws,this approach led to the strong social resistance. From 1970 s,the Muslim Personal Law,Family Code and the Indigenous Peoples' Rights Act were enacted besides the Civil Code to rectify the historical unfairness. Now,the draft and revision of the Civil Code seems like a passageway for different cultures influenced consecutively by Roman law,Common law,Islamic law and indigenous law. It inspires that the conflict between globalization and localization should be treated with caution in the process of drafting the civil code which concerns the whole field of citizens' life. As far as the Chinese civil code drafting is concerned,lessons can be drawn from Philippines. Common rules in the field of market trade law should be accepted actively,while legal tradition should be respected in the field of family law and property law.