民法典中参照适用条款的适用

民法典编纂中大量使用了参照适用这一立法技术,实现了简化条文、规范存储、增进体系化和查缺补漏的功能.在民法典贯彻实施中必须准确适用参照适用规范,以实现上述功能.参照适用规范与直接适用规范存在区别,二者在是否需要找法、是否需要辨别相似性、是否可以排除部分规范适用以及裁判者自由裁量权限等方面存在显著不同.参照适用也不同于类推...

Application of Reference Applicable Clauses in the Civil Code

In the compilation of our Civil Code,the legislation technology of reference application has been extensively used,which has realized the functions of simplifying provisions,standardizing storageenhancing systematization and checking for loopholes.In the implementation of the Civil Code,the applicable norms must be accurately applied and referenced in order to achieve the above functions.There is a difference between reference applicable norms and directly applicable norms.There are significant differences between the two in terms of whether it is necessary to find a law.whether to distinguish similarities,whether to exclude some norms from being applied,and the discretion of the judges.Reference application is also different from analogy.When judges can find specifications by referring to applicable clauses,it is not appropriate to apply analogy to fill loopholes.In practice,we should distinguish between general reference and specific reference clauses,and determine the applicable rules and steps based on the characteristics of the two.In the application of reference to the applicable clauses,we should proceed from the legislative purpose,judge the similarity of the adjustment objects,and finally test the results of the application of the law in accordance with the legal system.