论法定继承顺位的立法策略与实践中的家文化坚守

On the Legislative Strategy of Legal Succession and the Adherence of Family Culture in Practice

现行《中华人民共和国继承法》的法定继承规则本源自苏俄民法,与民众观念和习惯明显脱节。立法者长期默认这种脱节,造成国家法与日常观念、实践各行其是。法学家对此多有不满,力主参照西方模式修法。中国历史上曾有两类立法策略,都引发了与当下形似而神异的脱节现象。帝制时代的立法者明知不可行而立法禁止分家,欲以立法劝善。民众虽不按法而行,但认同其理。故看似脱节却能上下一理贯通,稳定有序。民国时立法全盘西化,当权者期以新法矫正观念以移风易俗。此策略收效甚微,民众不予认同,仍按传统行事。古今立法策略数变,不易者乃是国人对家文化,尤其对其内里蕴含的伦理价值始终坚守。缘此与西方法文化价值取向根本不洽,且占据道德上位,因而以西法强改国人观念、习惯,实难成功。有鉴于此,应否以及以何种策略修法须当审慎。

The current statutory inheritance rules in China’s Inheritance Law are mostly borrowed from Russia, therefore clearly out of touch with Chinese people’s concepts and habits. Legislators have long been slient on this disconnect, which cause national laws to deviate from general concepts and practices. Jurists are often dissatisfied with this situation and advocate to change the law with reference to the Western models. There have been two types of legislative strategies in Chinese history;however, both of them have triggered disjointed phenomena which are similar to the present one. In the era of monarchy, legislators legislated to prohibit separation of families, and wanted to legislate to persuade people to do good deeds, although knowing that this was not feasible. Therefore, although the law in the era seems to be disconnected from the society, it can be connected at the moral level, which makes the legislation stable and orderly. In the era of Republic of China, the legislation was completely westernized, and the authority needs the new law to correct the concept and change the customs. This strategy actually had small effect, and people at that time did not agree, and still acted according to the tradition. Despite the repeated changes in the ancient and modern legislative tactics, the unchanging one is the ethical values of the Chinese people, especially the inner ethics. The Chinese tradition is fundamentally inconsistent with the Western methods of cultural value which occupies a moral high position. Therefore, it is difficult to succeed in changing the concept and habit of the Chinese people in accordance with the Western law. In view of this, it is necessary to be cautious about whether and what strategies should be adopted to revise the law.