民法强制性规范研究
发布时间：2018-08-21 12:53
【摘要】：在司法、立法和理论研究层面,我国民法强制性规范存在诸多问题。其最终可归结为民法强制性规范的概念界定、类型划分、效力确定、规范配置、司法识别及适用解释等基本问题。针对这些问题,本文主要从基础理论、立法论和司法论的角度对民法强制性规范进行阐释,除导言外,全文共计六章。前四章主要研究基本理论,第五章是立法论研究,第六章是司法论研究。第一章探讨了民法强制性规范的概念。首先从概念的用语和内涵两方面总结民法强制性规范概念的争议焦点。在用语方面,分析比较了“强制”与“强行”、“规范”与“规定”、“规则”、“法规”等不同表述,论证了“强制性规范”作为概念称谓的合理性。在内涵方面,主要研究强制的对象、内容和效力。论证强制的对象应是民事主体或当事人,而非司法机关;强制的内容是当事人不能排除或变更法律规范的司法适用;强制的效力不单是法律制裁,而是当事人意欲产生的法律效果遭遇法律障碍。由此认为,民法强制性规范可定义为:当事人不能排除或变更司法适用,否则其意欲发生的法律效果将遭受法律障碍的民事法律规范。最后,经与任意性规范、倡导性规范、半强制规范和禁止性规范比较,界定了强制性规范的外延,并说明了科学界定民法强制性规范的理论和实践意义。第二章论证了民法强制性规范的法理基础。对于以私法自治为圭臬的民法而言,民法强制性规范主要在于限制当事人的权利自由,属于异质规范,其存在必须具有正当性基础,总体而言,大致有三。首先,从历史缘起看,在民法演化过程中民法法源由开放逐步转变为国家制定法占统治地位。在国家主导立法的背景下,基于社会公共利益考量,在私法中注入一定的强制性规范实属必然。古罗马时期强制性规范既已存在,至今数量剧增,适用范围扩大,成为具有相应社会基础的本体存在,而且在区分民法典和特别民法的形式体系中不断得以强化。其次,民法强制性规范确实具有显著功能。它能够融通个人与社会的关系,平衡私法自治与国家强制,兼顾形式理性与实质理性,协调私人利益与公共利益。这是民法强制性规范存在的功能基础。最后,民法强制性规范能够维护形式平等,推动实质平等;保障个人人身财产安全,保护市场交易与婚姻家庭安全;确保个人生活秩序,实现社会稳定有序;提升经济与社会运行效率。这是民法强制性规范存在的法律价值基础。第三章阐述了民法强制性规范的类型划分。民法强制性规范研究的重要目的之一在于确定其规范效力,便于司法。为此,必须首先厘定民法强制性规范的类型。根据不同的标准,民法强制性规范可以划分为不同的类型。某些传统类型划分,存在标准不合理或划分不清晰、不完整的问题。对此,为达到分类周延、实用的目标,本文按照强制的性质、强制的程度、强制的依据、强制的形式、强制的内容等标准,重构出私法型与公法型、全强制规范与半强制规范、自足型与转介型、原则型与规则型、程序型与实体型等民法强制性规范的类型。其中,实体型强制性规范根据强制的行为要素细分为权限型和行为型;根据规制法律关系内容分为权利型、义务型和责任型强制性规范。第四章探析了民法强制性规范的效力。民法强制性规范的效力按内容可分为导致行为无效、民事责任和公法责任三种。导致行为无效的机理在于公共利益与公共秩序保护,以及以第三人利益控制行为效力。能够导致该效力的强制性规范有双方型、程序型、行为型强制性规范,及效力性强制性规范。而半强制性规范、权限型强制规范与管理性强制规范不以行为无效为基本效力形态。导致民事责任的机理在于违反义务,包括违反契约义务和不侵害他人义务。故此,分别规定义务或责任的义务型和责任型强制性规范会导致民事责任。而规定权利的权利型强制性规范、全强制规范及单方型强制性规范的效力可能具有多样性。导致公法责任的机理在于违反公法义务。民法中可以导致该责任的是公法型强制性规范。转介型强制性规范,只有在转介公法性法律时才可能引发公法责任。第五章分析了民法强制性规范的立法配置。在法律全球化时代,科学立法配置需要借鉴域外经验。大陆法系与我国颇具亲缘。考察其民法强制性规范立法配置的规律,借鉴其优秀的立法成例,有利于在我国民法典编纂中更加明晰类型关系,确定规范构成,健全制度功能,完善立法方式。我国现行民法强制性规范存在条文数量过多、强制程度较高、对权利自由的限制过度、以及规范词使用不当等诸多问题。其原因在于民法根植之市民社会羸弱、立法理念偏颇及立法技术落后。对此,应在充分认识个体之于社会、市场之于政府、私法之于公法的优位性基础上,更新立法配置的指导思想,确定民法强制性规范的立法模式、立法本位、立法人像和立法方法,科学配置民法强制性规范,确保其合理性和可操作性,促使我国未来的民法典真正具有科学性、前瞻性和适用性。第六章研讨了民法强制性规范的司法适用。规范适用的前提是规范识别。民法强制性规范司法适用时,可以经由强制性规范词进行形式识别;通过意义发现和规范解释进行内容识别;运用价值判断和利益衡量方法进行本质识别。在司法实践中,一旦法无明文、法律抵触或者法律滞后时,适用原则型强制性规范就具有必要性、可能性与正当性。适用时应先确定原则型强制性规范的范畴关系和规范意义。当法无明文时,依据原则型强制规范予以漏洞补充或者类推适用;当法律抵触时,依据原则性强制规范进行法律续造;当法律滞后时,亦可根据原则性强制规范的精神进行必要的司法创制。规则型强制性规范的适用,主要是解释适用。其解释对象是构成法律规范的条文或文字;解释方法包括文义解释、目的解释、历史解释、体系解释等,分别从文字含义、规范目的、立法精神、逻辑体系等方面确保规则型强制性规范的司法适用。
[Abstract]:At the level of judicature, legislation and theoretical research, there are many problems in the compulsory norms of civil law in our country, which can be summed up as the basic problems such as the definition of the concept of compulsory norms of civil law, the division of types, the determination of effectiveness, the allocation of norms, the judicial identification and the interpretation of application. The first four chapters mainly study the basic theory, the fifth chapter is the study of legislative theory, the sixth chapter is the study of judicial theory. The first chapter discusses the concept of mandatory norms of civil law. In terms of language, this paper analyzes and compares the different expressions of "compulsory" and "compulsory", "normative" and "prescriptive", "rule" and "statute", and demonstrates the rationality of "compulsory norm" as a conceptual appellation. The parties, not the judicial organs; the content of compulsion is that the parties can not rule out or change the judicial application of legal norms; the effect of compulsion is not only legal sanctions, but also the legal effect of the parties intent to produce legal obstacles. Finally, by comparing with arbitrary norms, advocacy norms, semi-compulsory norms and prohibitive norms, this paper defines the extension of compulsory norms, and explains the theoretical and practical significance of scientifically defining compulsory norms of civil law. As far as the civil law is concerned, the compulsory norms of civil law mainly lie in restricting the rights and freedoms of the parties and belong to heterogeneous norms. Their existence must be based on legitimacy. Generally speaking, there are roughly three. First of all, from the historical origin, during the evolution of civil law, the origin of civil law has gradually changed from opening to China. Under the background of state-dominated legislation, it is inevitable to inject certain compulsory norms into private law in consideration of social and public interests. Secondly, the mandatory norms of civil law do have significant functions. They can harmonize the relationship between individuals and society, balance the autonomy of private law and state compulsion, give consideration to both formal and substantive rationality, and coordinate private interests and public interests. This is the functional basis of the existence of mandatory norms of civil law. After that, the compulsory norms of civil law can safeguard formal equality and promote substantive equality; protect personal property security, protect market transactions and marital and family security; ensure the order of personal life, realize social stability and order; enhance the efficiency of economic and social operation. This is the legal value basis of the existence of compulsory norms of civil law. One of the important purposes of the study of compulsory norms of civil law is to determine the validity of the norms so as to facilitate the administration of justice. Therefore, we must first determine the types of compulsory norms of civil law. According to different standards, compulsory norms of civil law can be divided into different types. In order to achieve the goal of classification and practicality, this paper reconstructs the types of private law and public law, full compulsory norm and semi-compulsory norm, self-sufficient norm and referral norm, principled and rule-based norm and procedure according to the nature of compulsion, the degree of compulsion, the basis of compulsion, the form of compulsion and the content of compulsion. Among them, substantive mandatory norms are divided into jurisdictional norms and behavioral norms according to the elements of compulsory acts; according to the content of the legal relationship, they are divided into rights, obligations and responsibilities. Chapter 4 explores the effectiveness of civil law mandatory norms. Effectiveness can be divided into three types according to the content, i.e. invalid conduct, civil liability and public liability. The mechanism of invalidation lies in the protection of public interest and public order, and the control of the effect of the act by the third party's interest. The mandatory norms that can lead to the effect are bilateral, procedural, behavioral and effective mandatory norms. The mechanism leading to civil liability lies in breach of obligations, including breach of contractual obligations and non-infringement of obligations of others. Therefore, the compulsory norms of obligation or liability stipulated separately will lead to civil liability. The mechanism leading to public law liability lies in the violation of public law obligations. Chapter 5 analyzes the legislative allocation of mandatory norms of civil law. In the era of legal globalization, scientific legislative allocation needs to draw on extraterritorial experience. There are many problems in the compulsory norms of civil law in China, such as too many articles, high degree of compulsion, excessive restriction on freedom of rights, and improper use of normative terms. Therefore, we should renew the guiding ideology of legislative allocation, determine the legislative mode of compulsory norms of civil law, legislative standard, legislative portraits and legislative methods, scientifically allocate compulsory norms of civil law to ensure its rationality on the basis of fully understanding the superiority of individual to society, market to government and private law to public law. Chapter 6 discusses the judicial application of compulsory norms of civil law. The premise of norm application is norm identification. When civil law compulsory norms are applied in judicial practice, they can be identified in the form of compulsory norms; and through meaning discovery and normative interpretation. In judicial practice, it is necessary, possible and legitimate to apply the principled mandatory norms when the law is not clear, the law is inconsistent or the law is lagging behind. When the law is not clear, it should be supplemented or applied by analogy according to the principled mandatory norms; when the law is inconsistent, it should be renewed according to the principled mandatory norms; when the law lags behind, it can also be created according to the spirit of the principled mandatory norms. The object of interpretation is the clause or text that constitutes the legal norm; the interpretation methods include literal interpretation, purpose interpretation, historical interpretation, system interpretation and so on, which ensure the judicial application of the rule-based mandatory norm from the literal meaning, normative purpose, legislative spirit, logical system and so on.
【学位授予单位】：郑州大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D913
，
本文编号：2195796
[Abstract]:At the level of judicature, legislation and theoretical research, there are many problems in the compulsory norms of civil law in our country, which can be summed up as the basic problems such as the definition of the concept of compulsory norms of civil law, the division of types, the determination of effectiveness, the allocation of norms, the judicial identification and the interpretation of application. The first four chapters mainly study the basic theory, the fifth chapter is the study of legislative theory, the sixth chapter is the study of judicial theory. The first chapter discusses the concept of mandatory norms of civil law. In terms of language, this paper analyzes and compares the different expressions of "compulsory" and "compulsory", "normative" and "prescriptive", "rule" and "statute", and demonstrates the rationality of "compulsory norm" as a conceptual appellation. The parties, not the judicial organs; the content of compulsion is that the parties can not rule out or change the judicial application of legal norms; the effect of compulsion is not only legal sanctions, but also the legal effect of the parties intent to produce legal obstacles. Finally, by comparing with arbitrary norms, advocacy norms, semi-compulsory norms and prohibitive norms, this paper defines the extension of compulsory norms, and explains the theoretical and practical significance of scientifically defining compulsory norms of civil law. As far as the civil law is concerned, the compulsory norms of civil law mainly lie in restricting the rights and freedoms of the parties and belong to heterogeneous norms. Their existence must be based on legitimacy. Generally speaking, there are roughly three. First of all, from the historical origin, during the evolution of civil law, the origin of civil law has gradually changed from opening to China. Under the background of state-dominated legislation, it is inevitable to inject certain compulsory norms into private law in consideration of social and public interests. Secondly, the mandatory norms of civil law do have significant functions. They can harmonize the relationship between individuals and society, balance the autonomy of private law and state compulsion, give consideration to both formal and substantive rationality, and coordinate private interests and public interests. This is the functional basis of the existence of mandatory norms of civil law. After that, the compulsory norms of civil law can safeguard formal equality and promote substantive equality; protect personal property security, protect market transactions and marital and family security; ensure the order of personal life, realize social stability and order; enhance the efficiency of economic and social operation. This is the legal value basis of the existence of compulsory norms of civil law. One of the important purposes of the study of compulsory norms of civil law is to determine the validity of the norms so as to facilitate the administration of justice. Therefore, we must first determine the types of compulsory norms of civil law. According to different standards, compulsory norms of civil law can be divided into different types. In order to achieve the goal of classification and practicality, this paper reconstructs the types of private law and public law, full compulsory norm and semi-compulsory norm, self-sufficient norm and referral norm, principled and rule-based norm and procedure according to the nature of compulsion, the degree of compulsion, the basis of compulsion, the form of compulsion and the content of compulsion. Among them, substantive mandatory norms are divided into jurisdictional norms and behavioral norms according to the elements of compulsory acts; according to the content of the legal relationship, they are divided into rights, obligations and responsibilities. Chapter 4 explores the effectiveness of civil law mandatory norms. Effectiveness can be divided into three types according to the content, i.e. invalid conduct, civil liability and public liability. The mechanism of invalidation lies in the protection of public interest and public order, and the control of the effect of the act by the third party's interest. The mandatory norms that can lead to the effect are bilateral, procedural, behavioral and effective mandatory norms. The mechanism leading to civil liability lies in breach of obligations, including breach of contractual obligations and non-infringement of obligations of others. Therefore, the compulsory norms of obligation or liability stipulated separately will lead to civil liability. The mechanism leading to public law liability lies in the violation of public law obligations. Chapter 5 analyzes the legislative allocation of mandatory norms of civil law. In the era of legal globalization, scientific legislative allocation needs to draw on extraterritorial experience. There are many problems in the compulsory norms of civil law in China, such as too many articles, high degree of compulsion, excessive restriction on freedom of rights, and improper use of normative terms. Therefore, we should renew the guiding ideology of legislative allocation, determine the legislative mode of compulsory norms of civil law, legislative standard, legislative portraits and legislative methods, scientifically allocate compulsory norms of civil law to ensure its rationality on the basis of fully understanding the superiority of individual to society, market to government and private law to public law. Chapter 6 discusses the judicial application of compulsory norms of civil law. The premise of norm application is norm identification. When civil law compulsory norms are applied in judicial practice, they can be identified in the form of compulsory norms; and through meaning discovery and normative interpretation. In judicial practice, it is necessary, possible and legitimate to apply the principled mandatory norms when the law is not clear, the law is inconsistent or the law is lagging behind. When the law is not clear, it should be supplemented or applied by analogy according to the principled mandatory norms; when the law is inconsistent, it should be renewed according to the principled mandatory norms; when the law lags behind, it can also be created according to the spirit of the principled mandatory norms. The object of interpretation is the clause or text that constitutes the legal norm; the interpretation methods include literal interpretation, purpose interpretation, historical interpretation, system interpretation and so on, which ensure the judicial application of the rule-based mandatory norm from the literal meaning, normative purpose, legislative spirit, logical system and so on.
【学位授予单位】：郑州大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D913
，
本文编号：2195796
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