《民法典》中“家庭”的双重意涵及传统文化的启示

The Dual Connotation of“Family”in the Civil Code and the Inspiration of Traditional Culture

《中华人民共和国民法典》中包含了权利义务关系型构的利合之家与伦理原则支撑的义合之家两种家庭,前者徧见于与家庭相关的各个具体法律规范中,代表了现代式法学对家庭及其关系调整机制的认识。而后者集中见于第1043条的原则性规定,常被视为国家意志与传统家文化精义的表达。二者之间存在的明显张力,且已见诸司法实践中。法官援引本条“刻意”作出与其他法条相悖的裁判,并在说理时强调义合之家背后的源自传统文化的伦理意涵,在《民法典》颁布实施以后的审判中已经出现,且非个例。征诸传统文化和法律制度、实践,可知坚守义合之家系诸人性之善所生发的爱与敬,具有超越时代和社会形态的生命力,对于任何社会实现善治、和谐俱不可或缺。而利合之家与义合之家的张力亦存在于传统中国的法文化中,非是中西法文化不相容所致。以古为鉴,法官以义合之家原则为据,不惜违背其他具体法律规范作出裁判以求成善的做法古今一贯,但当下缺乏对这种裁判模式的制度和学理支撑,是乃学界应当进一步思考的问题。

The Civil Code contains two kinds of family:the interest-harmony(lihe)family based on rights and obligations and the ethics-harmony(yihe)family supported by ethical principles.The former is found in various specific legal norms related to the family and represents the understanding of modern jurisprudence on the family and its relationship adjustment mechanism.The latter focuses on the principal provisions of Article 1043 and is often regarded as the expression of national will and the essence of traditional family culture.The obvious tension between them has already existed in judicial practice.It is not a rare case in which the judge cited this Article to“deliberately”make a judgment contrary to other laws,and emphasized the ethical implications of the traditional culture behind ethical entity in reasoning,which had already appeared in the trials after the promulgation and implementation of the Civil Code.Based on the traditional culture,legal system and practice,we can know that the love and respect generated by adhering to the ethics of all human beings have vitality beyond the times and social forms.Both of them are indispensable for any society to achieve good governance and harmony.The tension between interest-harmony family and ethics-harmony family also exists in traditional Chinese legal culture,not because of the incompatibility between Chinese and western legal cultures.Taking lesson from the past,judges have always made judgments in violation of other specific legal norms in order to achieve good results based on ethical principles.However,the lack of institutional and academic support for th judgment model is an issue that needs further studies in the academic community.