中国民法典分则诸编的排序问题——民法典贯彻“人前物后”逻辑的最后一里路

The Problem of Sequence of Different Books of the Chinese Civil Code:The Last Mile of the Civil Code of China for Putting in Practice of the Logic of Person First and Property Second

多数民法典包括人身法和财产法两个板块,对于两者的关系,有"人前物后"和"物前人后"两个选择,我国曾经选择"物前人后"。《民法总则》在其对象条款上改采了"人前物后"的选择,又在其民事权利章通过以"人前物后"的方式列举各种民事权利贯彻了这一选择,这就与我国目前对民法典各分则编"物前人后"的排序形成矛盾。我国民法典各分则编应采用"人格权编、婚姻家庭编、继承编、物权编、合同编、侵权责任编"的排序解决这一矛盾,以图把人文主义的民法观在我国未来民法典中贯彻到底。

Most civil codes include two parts,namely the part regarding to personal law and the part regarding to property law. As for the relationship between the two parts,there are two choices: person first and property second and property first and person second,China has chosen the first alternative. The General Part of Civil Law has changed the traditional position and has adopted the option of 'person first and property second'in its object clauses,and has implemented this option in its chapter V about civil rights by enumerating various civil rights in the manner of 'person first and property second',which is not in line with the ordering of different books of special part of civil code. This paper proposes to use the ordering of 'the book of personality rights,the book of marriage and family law,the book of inheritance law,the book of property law,the book of contract law,and the book of torts'to solve this contradiction,and in order to carry out thoroughly the humanistic view of civil law in the future civil code of our country.