《法学阶梯》体系的本质及其历史演变——从起源到17世纪

作为现代民法(典)体系构造两种基本模式之一的《法学阶梯》体系是盖尤斯的《法学阶梯》所开创的。就实体法部分而言,这种体系表面上体现为以无体物为支撑的"人—物"式结构,实质上其核心为"取得方式"。"人—物—物的取得方式"才是《法学阶梯》体系的本质。这种意义上的《法学阶梯》体系为16世纪少数人文主义法学家所发现,"取得方式"成为他们对市民法进行体系化重构的工具。以权利为核心,以权利的取得方式为纲的现代《法学阶梯》体系可以作为建构我国未来民法典体系的一种选择。

The Essence of the System of the Institutes and its Historical Evolution-From Origin to the Seventeenth Century

The system of the Institutes,as one of the two basic models of the structure of modern civil codes,was created by the Institutes of Gaius.Leaving aside its procedural part,that is the substantive one,the structure of the Institutes of Gaius reflects superficially in the dichotomy "persons-things" based on the concept of res incorporales,but in essence,the core of this structure is the "modes of acquirement",this is to say,the essence of the system of the Institutes reflects in the trichotomy "persons-things-modes of acquirement of the things".This system of the Institutes was discovered by some humanist jurists in the 16th century,and subsequently the modes of acquirement became the tool in their hands to reconstruct the system of the civil law.In conclusion,such system that concentrates on the individual rights and is constructed around the modes of acquirement of these rights will be a possible option for our future civil code.