从“自由意志”到“社会利益”——民法制度变迁的法哲学解读

康德的“自由意志”理论是传统民法哲学的基础。“自由意志”以“自主决定”与“自己责任”为原则 ,并衍生出近代民法的三大原则以及逻辑严密、体系完备、内容浩瀚的民法体系。但是 ,“自由意志”论在理论上与现实上都遭遇到了困境 ,民法制度随时代而变迁。庞德的“社会利益”学说是解说这种变迁的有力理论。依据庞德的理论 ,民法从专注于个人自然权利转向兼顾社会利益 ,民法价值出现了从个人自由到保护信赖的变化 ,民法的终极目的也出现了从人格的健全与发展转向社会秩序的和谐 ,并实现在人们需求冲突时的调整的变化。现代民法的内在体系因之形成以“自由意志”为内容的“常规法”和以“信赖保护”为内容的“矫正法”的二元结构。

From "Free Will" to "Social Interest":A Jurisprudential Analysis on the Transformation of Civil Law System

The modern civil law philosophy is built on Kant's "Free will" theory. On the principle of "self-determination" and "self-liability", the "free will" theory gives birth to the three main principles of modern civil law and its institutional system with elaborate logic, perfect structure and extensive contents. However, the "free will" theory is challenged both theoretically and practically. The civil law system is undergoing transformation with times. Pound's "social interest" theory provides effective frame of reference to explain this transformation. According to Pound's theory, civil law is turning from focusing on personal right to paying attention to social interest, with its value changing from personal freedom to reliance protection, and its end changing from the sanity and development of personality to the harmony of social order and the settlement of conflicts. Therefore the dual structure is formed in the civil law system, which contains "routine law" based on "free will" and "rectifying law" based on "reliance protection".