法律关系内容的重构:从线性结构到立体模型

Reconstruction of the Contents of Jural Relations: From Linear Structure to Cubic Model

法律关系理论是法学中最重要的理论之一。传统法律关系理论认为,法律关系的内容是权利与义务。此说法将很多本属于法律调整的社会关系排除出了法律领域,既无法准确反映私法的现实情况,又使法律关系理论难以被拓展到公法领域,还使传统法律关系理论显得过于单薄。美国法学家霍菲尔德在权利义务关系之外,增加了特权与无权利、权力与责任、豁免与无权力三对关系,使法律关系的内容变得丰满起来。但霍菲尔德对四对法律关系的揭示仍不够清楚,为此,需要作进一步的演绎。这一演绎是从澄清霍菲尔德的"相关关系"与"相反关系"开始的;之后,将霍菲尔德的八个基本法律概念置于三元关系之中,分析其逻辑结构;然后层层推进,由三元结构过渡到四边形结构,再到立体模型,将法律关系的诸要素置于立体模型之中。这种立体模型不仅有利于明确基本法律概念及其关系,而且方便我们更好地解释法律实践中出现的复杂法律关系,有利于克服传统法律关系理论的弊端。

The theory of Jural relation is one of the most important legal theory. According to traditional jural theory, the content of jural relation is right and duty. There are a lot of problems about this idea. Firstly, it will push some jural relations that ought to be adjusted by the law out of the law. Secondly, it will make it difficult to apply reliably jural relation theory to the public law. Thirdly, it can’t mirror correctly the true situation of private law. Traditional jural theory depicts the relation between right and duty into a kind of linear structure, which seems too thin. American jurist Wesley Newcomb Hohfeld had added another three pairs of jural relations into traditional jural relation, which are the relations of privilege vs. no-right, power vs. reliability and immunity vs. disability, and make traditional jural relation theory become more and more abundant. But Hohfeld’s theory is not so clear that we need to deduce logically further. The deduction will begin from clarifying the jural correlatives and jural opposites, and then we put Hohfeld’s eight fundamental legal concepts into triadic relations, discuss their relations and carry forward our discussion from triple model to quadrilateral structure. In the end, we construct a kind of cubic model, which is not only convenient to determine the meanings and relations of some fundamental legal concepts, and explain some compound and complex jural relations in legal practices, but also overcome the shortcomings of traditional jural theory.