摘要
民法学界通说认为,婚姻家庭法是私法,是民法的组成部分。但是,从法律体系架构的角度考察,婚姻家庭法并非只是私法。法律体系公法与私法的划分并非绝对,二者互为关联、互相影响。以我国现行《婚姻法》文本为分析对象,可知强制性婚姻家庭法律规范占绝大部分;国家公权力介入婚姻家庭,维护弱者的权益相当必要。因此,有必要转换思路,突破传统思维定势,确认婚姻家庭法是公私混合法的性质,以求符合婚姻家庭的基本价值与功能。
In our country, it is approved by most scholars that marriage and family law is private law, and it is one part of civil law. While, it is not only private law when it is studied from the angle of legal system. The division of public law and private law is not absolute. Public law and private law are related and influence each other. We may use the version of our country＇s current Marriage Law as analytical object and get the conclusion that most legal norms of marriage and family are compulsory ones. It＇s important for country＇s public power geting involved in marriage and family field to protect the the weak＇s rights and interests. Therefore, it is necessary to change thoughts, abandon traditional idea and define marriage and family law＇s quality as law of public and private. That quality accords with marriage and family＇s basic value and function.
出处
《西部法学评论》
2008年第5期4-8,共5页
Western Law Review
关键词
婚姻家庭法
强制性规范
公私混合法
Marriage and family law
Compulsory legal norms
law of public and private
