民国初年民事“第一法源”的确立——民初大理院对“现行律民事有效部分”的形塑

The Establishment of“the First Source of Civil Law”in the Early Years of the Republic of China-The Shaping of the“The Effective Sections of the Current Law on Civil Issues”by the Supreme Court of the Early Years of the Republic of China

学界普遍认为《大清现行刑律》民事部分的效力由1912年4月3日南京临时参议院的决议所确立,但梳理史料却能得出不同的结论。原因在于,该决议由南方政权作出且并未被北洋政府承认,故民事法源的空白未在立法层面得到解决。“现行律民事有效部分”的确立,离不开大理院在“司法兼营立法”过程中的塑造。民初民事“第一法源”的确立,大致经历了通过《大清民律草案》的尝试与挫败、大理院确立“现行律民事有效部分”的地位、剥离《大清现行刑律》刑法属性及该律地位的巩固等阶段。纵观民事“第一法源”的确立,自清末兴起的“诸法合体说”起了关键作用,大理院根据该观点将《大清现行刑律》区分为不同的部门法,既解决了“无法可依”的困境,又避免另立新民法将会遭受的阻力。

It is generally believed that the effectiveness of the civil part of the“Current Criminal Law of the Qing Dynasty”was established by the resolution of the Nanjing Provisional Senate on April 3,1912,but a review of historical data has led to an opposite conclusion.The reason is that the resolution was made by the southern regime and was not recognized by the Beiyang government,so the gap in civil legal sources has not been resolved at the legislative level.The establishment of“The Effective Sections of the Current Law on Civil Issues”is attributed to the Supreme Court which played a legislative role in the judicial process.The establishment of the“first source of civil law”in the early years of the Republic of China roughly went through stages such as the attempt and defeat of passing the“Draft Civil Law of the Qing Dynasty”,the establishment of the legitimate status of“The Effective Sections of the Current Law on Civil Issues”by the Supreme Court,the stripping of the attribute of criminal law of the“Current Criminal Law of the Qing Dynasty”,and the consolidation of its status.Throughout the establishment of the“first source of civil law”,the viewpoint of treating the“Current Criminal Law of the Qing Dynasty”as a combination of different legal branches,which emerged in the late Qing Dynasty,played a crucial role.Based on this viewpoint,the Supreme Court divided the“Current Criminal Law of the Qing Dynasty”into different branch laws,which not only solved the dilemma of lack of a civil code,but also avoided the obstacles that would be encountered if a new civil law was established.