论意思自治在亲属身份行为中的表达及其维度

On the Expressions and Dimensions of Autonomy of Will in Kinship Acts

近几十年来,意思自治所蕴含的个人主义、自由原则从财产法扩张至婚姻家庭法,这为民法典婚姻家庭编的各种自治行为适用总则编奠定了价值基础。意思自治在财产法上呈现强烈的工具主义面向,而家庭法作为“情感-经济共同体”与财产法判然有别,意思自治在其间的贯彻受到亲属伦理、家庭共同体维护以及弱者保护等理念的制约。意思自治在婚姻家庭编中表现为纯粹亲属身份行为与身份财产混合行为,前者参照适用民法典总则编中的法律行为制度时应兼顾家庭法的特殊价值取向;后者兼具家庭法与财产法的双重价值,工具价值逐渐增强而伦理因素渐趋削弱,参照适用合同编与物权编等规范时具有更大的自由度。

In recent decades,the principles of individualism and freedom contained in the autonomy of will have expanded from property law to marriage and family law,which laid a foundation for the applicability of the general provisions of Civil Code to the various autonomous acts in the chapter of marriage and family.However,family law,as"an embodiment of sensibility and economy,"is quite different from property law,for in the latter the autonomy of will presents a strong instrumental value.The expression of autonomy of will in the former is limited by family ethics and the idea of protecting the weak,so as to fulfill the social function of marriage and family.The autonomy of will is expressed into the pure kinship acts and the compound kinship and property acts through the juristic acts in the chapter of marriage and family in the Civil Code.To apply the provisions of the juristic acts in the Civil Code to the pure kinship acts,the special value of family law shall be taken into consideration.But to apply the provisions of the juristic acts in the Civil Code to the compound kinship acts,the value of family law and property law shall be both considered,with the instrumental value outweighing the family ethics consideration,and reference can be made to relevant provisions in contract law and property law.