《民法总则》的特色及其对民法各分编的影响

The characteristics of the General Provisions of Civil Law of the People's Republic of China and its influence on the various parts of civil law

《民法总则》在规范民事权利、意思自治、信赖保护方面颇具特色。关于民事权利的原则性、确权性或说明性规定,旨在以《民法通则》之衣钵落实权利保障法治化政策,彰显对民事权利保护的高度重视。人格权应否独立为一编应立足于该权利的独特性并结合侵权责任编的规定予以体系性、技术性论证,不能按《民法总则》关于人格权的规定并以人格权重要为据,进行自我想象的政策性论证。《民法总则》第134条与第136条第1款在践行意思自治原则上进步斐然,合同编应响应此种立法,摈弃将书面形式当作合同成立要件的《合同法》规定。合同是提取法律行为制度的基本素材,合同编不应再像《合同法》那样对合同的效力作专章规定。《民法总则》以对诸多信赖保护规则予以规定的方式,将信赖保护视为中国民法内在体系的构成要素。物权编应据此对不动产登记簿的公信力制度做出单独规定。

The General Provisions of Civil Law of the People＇s Republic of China have special characteristics regarding standardizing civil rights,autonomy of will,and trust protection. The general,empowering and descriptive regulations in respect of civil rights in the General Provisions of Civil Law of the People＇s Republic of China are designed to implement the aim of protecting civil rights by way of rule of law,therefore attaching great importance to the protection of civil rights. We should systematically and technically demonstrate whether the personality rights should become an independent chapter basing on its unique feature and the provisions of the tort law rather than on the policy of self-imagination. Article 134 and paragraph 1 of article 136 have made great progress in implementing the principle of autonomy of will. The contract part of the General Provisions of Civil Law of the People＇s Republic of China should respond to such legislation technique and abandon the written form requirement in formation of contract as stipulated by the Contract Law of the People＇s Republic of China. Contract is the basic material from which the legal act system is drawn,therefore the contract part should not stipulate for the validity of the contract in an independent chapter as does by the Contract Law of the People＇s Republic of China. The General Provisions of Civil Law of the People＇s Republic of China,based the regulation of many trust protection rules,regard the protection of trust as an essential element of the internal system of civil law in China. The real right part should make a separate provision on the credibility system of the real estate register.