私法与公法：体系的对立与规范的混合——兼以民法的公私法属性为视点

为有助于化解公私法划分及部门法公私法属性之争议,用历史实证的研究方法,呈现近代私法、公法的体系划分以及公私法与民法等部门法之间的关系是一种法律传统的历史性自然延续,经历了从规范、学说体系到部门法的演变;借助于现代法学方法论,解释现代法学家对公私法分类传统的质疑,实质上是揭示出以法律文本为表征的民法等部门法内在规范组成要素的公私混合性,这是自罗马法以来的一种法律文本之常态;要合理考量公私法之间的关系及它们分别与部门法的关系,应立足于三个视角加以区分：传统与体系;规范;本体规范。

Private Law and Public Law: Systems' Opposition and Standards' Mixing Concurrently with the View of the Civil Law' s Public-Private Law Attribute

In order to be helpful to settle disputes of the division of public and private law and the public-private law attributes of branch laws, this article uses the researching way with history substantial evidence to present the system division of public and private laws in modern times. The relation between the public-private law and branch laws like civil law is a kind of legal tradition＇ s historic hatural continuation which experienced the changes from the regulations and theory systems to branch laws. By using modern jurisprudent methodology, this article explains the modern jurists＇ doubts on the dividing tradition of public and private law. In fact it shows public and private mixing with the composing factors of branch laws like civil law by using legal text as the characterization. This is the legal text＇ s normal state after Roman Law. The reasonable equity consideration of the relation between public and private law and the these two laws ＇ relation with branch laws respectively should stand on three angles to distinguish, that is tradition and systems and ontology regulations.