私人自治与私法品性
易军私人自治与私法品性
Private Autonomyand Characters of Private Law
期刊名称：《法学研究》
期刊年份：
作者：易军
单位：中国政法大学
中文关键词：私人自治|私法品性|形式主义|形式性|自治性|工具性
英文关键词：private autonomy|characters of private law|formalism|the character of form|the character of autonomy|the character of instrumentality
中文摘要：
我国学界普遍忽视私人自治与作为其生存环境与运行背景的私法之间的关系。私人自治与私法品性之间具有密切关联。由于实行私人自治原则，私法呈现出抽象性、目的独立性、否定性、程序性、形式性、自治性、工具理性等形式主义品性。由私人自治在民法中的基石性地位所决定，形式主义品性在私法中居于主导地位。民事立法应坚守形式主义品性，若必须创设例外，应有正当充分的理由。中国现行民法还存在着上述诸品性程度不高的缺憾，形式主义品性有待提升。
英文摘要：
Chinese scholars of the private law ignore widely the relationship between private autonomy and private law, which provides the existing space and functional background for the former. In fact, due to private autonomy, private law presents characters of formalism as abstract, end-independence, negativeness, procedure, form, autonomy, instrumentality, etc. Concretely, the abstract private rules beyond specific questions provide just a framework in which individuals take actions. These rules just limit but not govern people's decisions. Private law has not its own purpose and treats all individual specific purposes as its own, so that exists as a multi-purpose instrument. Private autonomy is a negative conception. Although negative private rules are mandatory, they would not hurt private autonomy excessively due to their negativeness. The procedural control is of obvious superiority over the end-control for preserving the freedom of juristic act because it is founded on the theory of subjective value. Procedural private law is formal meantime. In private law, formal obligations limit personal freedom in the minimum degree, so the priority of freedom is highlighted. The value of private autonomy is conflict with the non-legal ideas from politics, ethics, economics, to religion, which means that private law has the character of autonomy. The instrumental rationality embodies not only in all transaction fields by juristic act system, but also in the non-transaction fields, such as family and donation. So all fields of private law are full of the instrumental rationality.Private autonomy is the foundation of the private law, thus the above characters should dominate private law. Civil legislation should abide by the characters of formalism, and should not make exceptions easily but for sufficient and justifiable reasons. However, there are different defects in current Chinese civil legislation, such as declaring legislative purpose specifically in the first article, taking discrimination imprudently, the phenomenon of the general politics, etc. The characters of formalism should be improved in the future civil legislation of China.
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