婚姻家庭法应纳入民法体系

发布时间：2018-06-13 10:57

本文选题：婚姻家庭法 + 民法体系　；参考：《学术交流》1992年05期

【摘要】：正婚姻法也叫婚姻家庭法.它究竟是一个独立的法律部门,还是属于民法的一部分在我国法学界至今还存在两种不同的意见.一种意见认为,社会主义条件下的婚姻家庭关系,不是契约关系,更不是商品关系,把婚姻家庭法纳人民法体系中是不合适的,而应将婚姻家庭法作为独立的法律部门;另一种意见认为,根据传统的民法体系,并依据我国民法通则的有关规定,考虑到婚姻家庭制度与民法的其他制度的联系,笔者认为,婚姻家庭法应纳人民法体系.其理由是: 一、根据传统的民法体系,婚姻家庭法包括在民法中在世界各国的立法中,无论是在大陆法系国家,还是在英美法系国家,婚姻家庭法都包括在民法中.这一点,在以罗马法为代表的大陆法系国家中表现的尤为明显。罗马法学家盖尤士在其著作《法学阶梯》中,对罗马法的结构,即罗马私法的编制进行了探索性的尝试.他以权利的主体,客体和保护为思想脉络,将罗
[Abstract]:The law of marriage is also called the law of marriage and family. Whether it is an independent legal department or a part of civil law, there are still two different opinions in the field of law in our country. One view is that marriage and family relations under socialist conditions are not contractual relations, not commercial relations, marriage and family law is inappropriate in the people's law system, but the marriage and family law should be regarded as an independent legal department; Another view is that, according to the traditional civil law system, and according to the relevant provisions of the general principles of civil law in China, considering the relationship between marriage and family system and other systems of civil law, the author believes that marriage and family law should be incorporated into the people's law system. The reasons are as follows: first, according to the traditional civil law system, marriage and family law is included in the civil law in the legislation of various countries in the world, whether in the civil law countries or in the common law countries, the marriage and family law is included in the civil law. This is especially evident in the countries of the civil law system represented by Roman law. In his work the legal ladder, the Roman jurist Gaius made an exploratory attempt at the structure of Roman law, that is, the compilation of Roman private law. He took the subject, object and protection of rights as his ideological thread.
【作者单位】：吉林大学法学院

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