中国民法与宪法关系认知争论与反思

Abstract

The civil constitutional relationship in China is an important fundamental theoretical issue that has sparked heated discussions over multiple periods in the history of compiling the Civil Code, and has not ceased since its promulgation. It is necessary to analyze the existing understanding of the civil constitutional relationship in the academic community, point out its shortcomings, and then reflect on China's civil constitutional relationship after comparing it with foreign civil constitutional relationships. Firstly, from the existing understanding of the relationship between the people and the constitution, scholars in the civil law and constitutional fields often have their own disciplinary positions. Civil law scholars often discuss the relationship between the people and the constitution from the perspective of the independence of civil law, while constitutional scholars often understand the relationship between the two from the perspective of the highest and fundamental nature of the constitution, believing that civil law belongs to the constitution. Both types of scholars have failed to empathize, making it difficult to achieve "purification value analysis", and their proposed viewpoints need further discussion. Secondly, there is a misconception about the understanding of the relationship between the people and the constitution, which makes it difficult to eliminate interference from factors such as political stance, school stance, or disciplinary stance. Both types of scholars failed to realize that the formulation of this law based on the Constitution may not be a legal source, but rather a formal declaration of constitutionality with political connotations. When dividing based on public and private law, it is easy to fall into the misconception that civil law is completely divided or not divided between civil and constitutional law, while ignoring the integration relationship between the two. Thirdly, from an external perspective, before the emergence of modern constitutions in various European countries, the civil constitutional relationship was in a state of content confusion. After the emergence of modern constitutions in Europe, the civil constitution was in a state of formal independence. In the mid-20th century, after World War II, modern constitutions in Europe successively emerged, and the two were in an interactive form of content and form. This represents the general law of the development of civil constitutional relationship in the continental legal system. Fourthly, when it comes to China's civil constitutional relations, we should not only refer to the mainland legal system outside the region, but also recognize our own unique characteristics. Although China's constitution predates civil law, it has not established a judicial review system and lacks modernity. To analyze the relationship between the Chinese people and the constitution, we should start from both external and internal perspectives, distinguishing between political constitution and normative constitution. Although China's Civil Code is based on the Constitution in its external form, its normative content sources include not only the Constitution but also the civil law's own tradition, the CPC's policies and judicial practice experience. The relationship between China's civil law and the constitution cannot be completely classified as subordinate, parallel, or intersecting. It should be recognized that the external relationship between the two has a strong political color, and the internal relationship between the two has a strong normative color.