民刑共治:国家治理体系与治理能力现代化路径

Co-governance of Civil Law and Criminal Law: The Modernization Path of National Governance System and Ability

《民法典》的颁行提供了重新审视我国国家治理能力是否实现了现代化这一重大问题的契机。在前民法典时代,我国采取的是基于国家中心主义的重刑轻民国家治理模式,这种模式在内部表现为对刑法维护社会秩序机能的重视,在外部体现为刑法常常绕过前置法成为应对社会失范行为的优先和常态化工具。在民法典时代,国家治理现代化呼唤以人民为中心的以重民轻刑为前提的“民刑共治”新模式。只有民先刑后民进刑退,方能形成轻重有序责任有别的民刑共治治理体系,并实现国家治理对公权力倚重转向私法自治的能力现代化。民刑共治也是回应共建共治共享国家治理现代化基本理念行之有效的模式。

The promulgation of the Civil Code provides an opportunity to re-examine whether China’s national governance capacity has achieved modernization.In the pre civil code era, our country adopted the state-centric model of state governance based on a criminal over civial focus. This model shows that it pays attention to the function of criminal law to maintain social order internally, and that criminal law often bypasses the prepositional law and becomes a priority and normalization tool to deal with social anomie externally.In the era of civil code, the modernization of national governance calls for a new mode of "co-governance of civil and criminal law", which takes the people as the center and takes the civil law as the premise.Only when the civil law takes precedence over the criminal law and the civil law moves forward but the criminal law retreats, can we form a co-governance system of civil criminal with different responsibilities, and realize the modernization of the national governance ability from the reliance on public power to the autonomy of private law.T he co-governance of civil and criminal law is also an effective model in response to the basic idea of co-construction, co-governance and shared modernization of national governance.