《民法总则》后我国民法基本原则理论研究述评

A Review of the Theoretical Researches on the Basic Principles of Civil Law in China after the General Part of Civil Law

《民法总则》更新了《民法通则》确立的民法基本原则,体现了经济理论的更新和经济体制的更新,外加生态观念的更新,经过这番更新,民法基本原则作为一个整体的经济内容减少,国际共同规则增多,代表了我国民法学和民事立法对商品经济的民法观的疏离。但随着我国民法典编纂完成导致的婚姻家庭法、继承法的回归民法,以及人格权编的新设,我国过去以商品交换法为参照系建构的民法基本原则体系还需要重建,以便得到留存和新纳的基本原则能涵摄这三个新的民法典分则编。商品交换法的民法基本原则观的最典型遗留是基本为我国学界独倡的平等原则。学说上的民法基本原则体系可以跟立法的不一致。我国民法应有四项基本原则,即诚信原则、公序良俗原则、绿色原则、意思自治与国家的保护性干预相结合原则。

The General Part of Civil Law updated the basic principles of civil law established in the General Principles of Civil Law,reflecting the renewal of economic theory and the renewal of the economic system,plus the renewal of ecological concepts.After this renewal,the basic principles of civil law as a whole have reduced economic content and increased international common rules.This has resulted in the alienation of our civil law theory and civil legislation from the theory of civil law based on the commodity economy.However,with the return of marriage and family law and inheritance law to the civil code and the establishment of the book about the personality rights as a result of the compilation of our civil code,the basic principle system of civil law,which was constructed in the past based on the commodity exchange law,needs to be rebuilt in order to the survived and newly established basic principles of civil law can cover these three new books of the Civil Code.The most typical legacy of the basic principles of the civil law of the Commodity Exchange Law is the principle of equality,of which is basically the soloist the Chinese academic circles.The system of basic principles of civil law in doctrine can be inconsistent with that of the legislation.Our civil law should have four basic principles,namely,the principle of good faith,the principle of public order and good customs,the green principle,and the principle of combining the private autonomy and the state's protective intervention.