中国民法典的本土化何以可能:一条现实主义的路径

The Possibility of Localization of Chinese Civil Codification

许多中法史学者认为对于法治后进国家而言,民事习惯调查是弥合继受法与本土法之间张力的有效手段,否则即便编纂成功,民法典也徒具其型。然而这种看法是对东方国家民法典编纂历程的典型误读。民事习惯调查之于民法典编纂的意义有限,民法典的本土化过程根本无法一次完成,而必须委诸于后续司法、法学理论与立法三者之间的良性互动,借道于法典编纂之后司法解释的本土化与学说建构的本土化来渐次完成。从单纯辅助司法的法律技艺迈向自主的规范科学,再到涵括规范与事实的社会科学,才是法律本土化最为理想的演进路径。

It is a wide circulated views among many scholars of Chinese law history that civil custom investigation is an effective measure in softening the inherent tension between adopted law and native law for the backward countries on the part of the rule of law. Without this measure, the civil code would look like a skyscraper but actually an empty house. However, such opinion is a typical misreading of the oriental countries' historical course of civil codification. As for the civil codification, the so-called civil custom investigation has a rather limited significance to a great extent. The localization of civil code could not be accomplished in an action, for it has to fulfilled step by step by the conductive interactions among the judiciary, legal theory and the legislator and resort to the gradual subjectification of judicial interpretation and the localization of theoretical construction.