“ 身份关系协议”准用《民法典》合同编的体系化释论

An Interpretation of the Systematization of Application by Reference to the Contract Part of Civil Code in the Identity Relationship Agreement

《民法典》第464条第2款的准用条款系沟通家庭法与合同法、伦理秩序与交易体系的桥梁,是受立法者指引和授权的高度概括的价值评价条款,本质上仍然属于法律解释范畴,有赖于法教义学的具体化和类型化。意思自治原则适用领域的扩大与婚姻家庭编的内在价值秩序共同为身份关系协议准用合同编乃至总则编提供了价值基础。身份关系协议可以被类型化为纯粹身份关系协议、身份财产混合协议以及身份财产关联协议,三者的伦理性渐次减弱而财产性趋强。法官在个案中既要依据婚姻、收养和监护等身份关系协议的事实构成和性质来评价和发掘合同编和总则编之中被援引法条的规范意旨,还要论证该规范意旨与婚姻家庭编的原则以及待决身份关系协议的伦理属性不相排斥,避免“参照适用”条款沦为交易规则过度市场化、工具化身份关系协议和“反噬”家庭法的通道。

The quasi-applicable clause of Article 464,paragraph 2 of the Civil Code is a bridge between family law and contract law,ethical order and transaction system.It is a highly generalized value evaluation clause guided and authorized by legislators.In essence,it still belongs to the catego-ry of legal interpretation and depends on the concreteness and classification of dogmatics of law.The expansion of the application field of the principle of autonomy of will and the intrinsic value order of Marriage and Family Part provide a value basis for applying the Contract Part and even General Provisions of Civil Law in the identity relationship agreement.Identity relationship agreement can be classified into pure identity relationship agreement,identity property hybrid agreement and identity property association agreement.The ethical attribute of the three is gradually weakening,while the attribute of property is becoming stronger.The judge’s quasi-application in a case should be based on the factual composition and nature of the identity relationship agreement such as marriage,adoption and guardianship,and explore the implications of the cited articles in the Contract Part and General Provisions of Civil Law.It is also necessary to demonstrate that the implications are not mutually exclusive with the principle of Marriage and Family Part and the ethical attributes of the identity rela-tionship agreement.In this way,we can avoid the quasi-applicable clause becoming the channel of over marketization of transaction rules,instrumentalization of identity relationship agreement and in turn damaging the of family law.