法学研究

文章摘要

家庭关系民法适用和续造的顺序

The Sequence of Application and Development of Civil Law Regarding Family Relations

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英文关键词: family relations; marriage law; law of succession; application of civil law; development of law

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作者	单位
刘征峰

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中文摘要:

超出家庭法的法律适用和法律续造不仅是可行的，而且是必要的。民法总则和其他分则的某些规范可直接适用于家庭关系。总则规范之形式统摄力原则上仅针对身份财产关系。对于纯粹身份关系，无需将排除总则规范适用作为确定开放漏洞的前提，但需要实质比较总则适用和家庭法内部续造的妥当性。对于身份财产关系，法官需要先就总则规范进行目的限缩论证，再考虑家庭法内部续造问题。在同时满足家庭法上规范和其他分则规范构成要件的情况下，前者通常构成特别法。基于对规范目的之特殊考量，后者亦可能构成特别法。在家庭法无特别规定时，法官同样有义务先就其他分则规范进行目的限缩论证，再考虑家庭法内部续造问题。涉及家庭关系的外部准用属于概括准用，证立负担与类推适用大体相当。家庭法内在体系的相对独立性使得家庭法内部续造原则上优先于外部准用和续造。家庭法内部法律适用、法律续造和超出家庭法的法律适用、法律续造之间顺序的判断，最终依赖于目的性考量。

英文摘要:

The application and development of law beyond family law is not only feasible but also indispensable. Certain norms of the General Part and other special parts of the Chinese Civil Code are directly applicable to family relations. The formal unified force of the norms of the General Part is, in principle, limited to property relations between family members. In the case of pure family relations, it is unnecessary to exclude the application of the norms of the General Part as a prerequisite for determining an open gap, but it is necessary to make a substantive comparison between the appropriateness of applying the norms of the General Part and the appropriateness of law development within family law. In the case of property relations between family members, the judge needs to argue for limiting the application of the norms of the General Part before considering the question of the development of the law within family law. Where the elements of both the family law norm and the norm of another special part are met, the former usually constitutes lex specialis. The latter may also constitute lex specialis based on special considerations of the purpose of the norm. In the absence of special provisions in family law, the judge is likewise obliged to make a teleological reduction argument in respect of the related norm in other special parts before considering the question of the development of the law within family law. Since the external analogy stipulated by law regarding family relations is an abstract analogy, the burden of argumentation on the judge is largely equivalent to that of the analogy by the judge. Because of the relative independence of the internal system of family law, priority is given to the internal development of the law over the external analogy stipulated by law and law development in principle. The determination of the sequence between the application and the development of the law within and beyond family law ultimately relies on teleological considerations.

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