禁止权利滥用的立法与实践:基于社会变迁的视角

Legislation and Practice of Prohibition of Abuse of Rights from the Perspective of Social Change

权利滥用问题是一个历久弥新的问题。随着网络社会的迅猛发展,其对国家安全和社会稳定的影响不可低估。现行经典民法教科书大都在民法基本原则章节将禁止权利滥用原则作为民法的基本原则,但《民法总则》却未将其规定为基本原则,而是将其规定在"民事权利"一章。系统梳理禁止权利滥用立法与实践的演变历史可以发现,禁止权利滥用的演变轨迹是一个从私法上的一般禁止到全面禁止,以及从私法走向公法、从国内法走向国际法的过程。禁止权利滥用演变历史的主要启示为:从供给到需求,权利在受经济社会发展制约的同时,又是解决经济社会发展问题的关键;从现实到虚拟,必须从事关经济社会发展的高度认真对待权利滥用问题;从管理到治理,尊重权利是破解权利滥用问题的元治理理念。

The abuse of rights is an old and gradually reborn problem. Along with the rapid development of internet society, its influence on national security and social stability cannot be underestimated. Most of classic civil law textbooks include prohibition of abuse of rights as the basic principle of civil law in chapter of the basic principles of civil law, but the General Principles of Civil Law did not stipulate it as the basic principle, instead it was stipulated in chapter of ＂civil rights＂. Through sorting out the evolution history of legislation and practice of abuse of rights systematically,we can found that the evolution of the prohibition of abuse of rights is a process from private law to general prohibition,from private law to public law, and from domestic law to international law. The main enlightenments on the evolution history of prohibition of abuse of rights include： From supply to demand, right is the key to solve problems of economic and social development, while it is restricted by economic and social development. From reality society to virtual society, we must take into account the issue seriously from the perspective of economic and social development. From management to governance, respect for rights is the meta-governan ceconcept, which is used to solving the problem of abuse of rights.