法律事实的意义辨析
常鹏翱法律事实的意义辨析
On the Meaning of Legal Factin the Civil Law
期刊名称：《法学研究》
期刊年份：
作者：常鹏翱
单位：北京大学法学院
中文关键词：法律事实;具体事实;抽象事实;构成要件;类型
英文关键词：legal fact;concrete fact;abstract fact;constitutive condition;type
中文摘要：
民法学通常将法律事实作为引致法律关系得丧变更的具体事实。但该定位隐含着表达与所指的错位，并缺失立法视角的审视，其法律意义还容易被常识所覆盖。要修正这些不当，宜从立法视角出发，以规范为定位点，法律事实因此可一般化为与法律效果对应的构成要件，即在特定功能引导下经由专业逻辑安排而形成的格式化社会现实的规范工具，同时又能具体化为构成要件中的构造要素。它们的关系错综而有序，反映了民法的体系性。以规范面目出现的法律事实是法律理念与现实的对应与调适，在适用中还要与个案的具体事实再次对应与调适。法律事实由此充满互动的张力，同时也使民法学有了多元的知识资源。但无论如何，法律事实并非具体事实。
英文摘要：
In Chinese civil law theory, legal fact is a special academic concept, and means some concrete fact which induces the generation, change or end of legal relation. However, this popular recognition has fatal defects of misconnecting what it says and what it wants to refer to, lacking the scan from the view of law-making, and making the legal understanding and common sense confused.On the general level, legal fact should be the constitutive condition which is the condition of the legal effect in the integrate rule. In this respect, legal fact is a kind of normative instrument to format social actuality, which is composed in virtue of professional logic arrangement guided by special legal function. So, the well-known divisions of legal fact, such as natural fact and action, legal action and illegal action, juristic action and factual action, do not refer to concrete facts, but refer to concrete rules actually. On the specific level, legal fact should be the constitutive element of the legal condition. In this respect, legal fact has more appearances, such as the outer fact and the inner fact, the positive fact and the passive fact, and the affirmative fact and the possible fact. The relationship of those facts is reticular and orderly, and this complexion reflects the systematization of the civil law.Though legal fact should be normative, it is the parallelism and accommodation between the legal idea and reality. When legal fact is put into practice, it will correspond with and accommodate the concrete fact in the real case. Obviously, legal fact is full of tension between law and life, full of interaction between idea and reality, and full of intertwining between rule and case. In view of the meaning of legal fact, civil law theory should have pluralistic resources of knowledge.
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