中国民法典编纂视域下婚姻家庭法定位之思考

On the Orientation of Marriage and Family Law——From the Perspective of Compiling of Chinese Civil Code

中国婚姻法经历了由独立法律部门法到"回归民法"的不同历史阶段。尽管婚姻家庭法纳入民法典体系已成为主流,但围绕婚姻家庭法与民法的关系仍有立场不一的各种争论和思考。婚姻家庭法虽归于民法典体系,但应具有相对独立性,应妥善处理好民法总则与民法分则关系的衔接及协调,特别要协调好民法总则与分则婚姻家庭编(亲属编)的关系及法律适用的冲突等。应恪守和明确家事立法的价值取向和定位,坚守和突出婚姻家庭法的伦理性,重构婚姻家庭伦理的核心价值(利他奉献),树立和增强社会性别意识,培育和提升契约理念及理性意识。

Marriage Law of the People＇s Republic of China has gone through different historical stages from independent legal branch to ＂Returning to Civil Law＂. Despite that incorporating Marriage and Family Law into the Civil Code has become the mainstream, there are various arguments and reflections about the relationship between Marriage and Family Law and Civil Law. Although being a part of civil code system, the Marriage and Family Law should keep relatively independent, properly handle the cohesion and coordination with general and specific provisions of Civil Law, especially the marriage and family volume and law application conflicts. In addition, Marriage and Family Law should observe and clarify the value orientation of family legislation, stick to and highlight its ethicality to reconstruct the core value of marriage and family ethics - altruism dedication, set up and enhance gender consciousness and cultivate and improve contract concept and rational consciousness.