论民事死亡——兼论社会死亡和社会瘫痪

发布时间：2019-06-30 20:29

【摘要】：严格意义上的民事死亡制度起源于罗马,判罪、移民两种导致民事死亡的原因,在罗马法上都发生了。从此,这两者成为历代的立法者和法学家考虑民事死亡问题的主线。而且,罗马法学家感受到了一种类似于死亡的导致民事法律关系变化的法律事实,还差一里路把它提升为概念,进而反过来把它系统化为制度,这一工作由中世纪法学家完成。他们型构了拥有自然死亡和民事死亡两个种的死亡的属概念,进而把两种死亡都当作导致法律关系变动的原因。而后,民事死亡按罗马人开创的三个方向以立法的方式实现了体系化。但在19世纪后半叶,民事死亡制度遭遇了合理性危机,导致多数采用它的国家和地区名义上废除了它。但实际上,这种废除实际上是"粉碎"。换言之,民事死亡的效果首先被分解为公法上的和私法上的,然后在这两个范围内又进一步地破碎化。除了少有的剔除,其余的"碎片"都换了个名称继续存在直到今天的现代法中。为何民事死亡制度不死?因为它满足了一个社会清除害群之马的需要和内外有别的需要。
[Abstract]:In the strict sense, the civil death system originated in Rome, conviction and immigration, which led to civil death, both of which occurred in Roman law. Since then, these two have become the main line for lawmakers and jurists to consider the problem of civil death. Moreover, Roman jurists felt a legal fact similar to death that led to the change of civil legal relations, and there was still a mile left to upgrade it to a concept and, in turn, to systematize it into a system, which was done by medieval jurists. They construct the generic concept of death with two species of natural death and civil death, and then regard both kinds of death as the cause of the change of legal relationship. Then, according to the three directions created by the Romans, civil death was systematized by legislation. But in the second half of the 19th century, the civil death system encountered a crisis of reasonableness, which led to the nominal abolition of most of the countries and regions that adopted it. But in fact, this abolition is actually "shredded". In other words, the effect of civil death is first decomposed into public law and private law, and then further broken in these two areas. With the exception of rare knockout, the rest of the debris has been renamed and continues to exist until today's modern law. Why does the civil death system not die? Because it meets the needs of a society to clear the black sheep and the need for internal and external differences.
【作者单位】：厦门大学法学院罗马法研究所;
【分类号】：D913

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