民国时期民法体系中的判例:形式与功能的变化

Legal Precedents in the Civil Law System in the Republic of China(1912-1949): Evolving Forms and Functions

民国时期为建构稳定而开放的民法体系,最高审判机关所创制的民事判例发挥了重要的作用。民国北京政府时期,大理院从发布判例全文汇编,到编辑和发布判例要旨,再到判例要旨的独立汇编;在法律体系不完备的条件下,判例整合了制定法、习惯、条理等既有法律渊源,在功能上发挥了规范选择与体系建构的作用,为民法体系提供了稳定性。民法典颁行以后,南京国民政府最高法院严格遵循制定法效力优先原则,采取了判例要旨附属于制定法的汇编形式,在功能上是制定法的解释和补充,判例为民法体系提供了扩展性规范。以民法典颁行为界分,民事判例在形式和功能都发生了很大变化,但其功能始终服从于民法体系的稳定性与开放性的需要。

To construct a stable and open civil law system in the Republic of China, the civil precedent made by the highest judicial organ played an important role to achieve the goal. During the administration of the Beijing government of the Republic of China(1912-1949), the Daliyuan, or the highest adjudicative organ established during the late-Qing period, published the full text of the cases, edited and published the gist of the cases, and then compiled the gist of the cases in independent publications. Under the condition of an incomplete legal system, such legal precedents integrate existing legal sources such as statutory law, customs and legal interpretations into a whole system which played a functional role of normative selection and systematic construction, providing stability for the whole civil law system. After the introduction of the Civil Code, the Supreme Court of Nanjing National Government strictly followed the principle of statutory priority and made the compilation of gist of precedents as a subordinated part of the whole legal scheme, in which the legal precedents should be regarded as interpretation and supplementary contents of the formal statutory law, an arrangement that allowed extension of norms and rules alongside the existing civil law system. After the introduction of the Civil Code, civil precedents have been undergoing tremendous changes both in form and in function, However, their functions shall be always subject to the needs of the whole civil law system featured by stability and openness.