《民法典》婚姻家庭编适用衔接问题研究

The Application Connection of Marriage and Family Law in Civil Code

婚姻家庭编成为民法典的一编,提升了婚姻家庭法的体系化,婚姻家庭法形式上回归了民法,也带来了婚姻家庭法的开放法源。婚姻家庭法的法律渊源并不局限于民法典婚姻家庭编,民法典其他各编以及相关单行法律法规中也存在婚姻家庭法律规范。民法法源论不限于考察静态的法源表现形式,还要关注动态的法源冲突协调,形成动态法源观。婚姻家庭编不可避免地存在与民法典其他各编的关联交叉、融合衔接,婚姻家庭编适用过程中的最大难题是妥当协调与民法典其他各编的动态适用衔接关系。辩证看待其他各编的体系溢出效益和婚姻家庭编调整对象与调整方法的特殊性,有助于实现婚姻家庭编向民法典实质意义上的回归。对婚姻家庭编与民法典其他各编乃至相关单行法律法规适用衔接问题的系统全面研究,有助于实现婚姻家庭法在民法典内部和外部的双重体系化。

Marriage and family law has become a part of the Civil Code,which has promoted the systematization of marriage and family legal norms.Marriage and family law has returned to the civil law nominally,and also brought about the open sources of marriage and family law.The legal source of marriage and family law is not limited to the marriage and family part of the Civil Code.There are also marriage and family legal norms in other parts of the Civil Code and relevant individual laws and regulations.The theory of source of civil law is not limited to the investigation of static forms of source of law,but also to the coordination of dynamic source of law conflicts,so as to form dynamic sources of law.It is inevitable that the marriage and family part has connection and integration with other parts of the Civil Code.The biggest problem in the application of the marriage and family part is how to properly coordinate the dynamic application and connection with the other parts.It is helpful to realize the return of marriage and family codification to Civil Code in essence by dialectically looking at the systemic overflow benefits of other parts of Civil Code and the particularity of the objects and methods of adjustment of marriage and family law.A systematic and comprehensive study on the application and convergence of marriage and family part with other parts of the Civil Code and even relevant individual laws and regulations will help to realize the dual systematization of marriage and family law,both internally and externally,in the Civil Code.