私法社会化的反思与批判——社会法学的视角

社会法不属于特别私法,也非私法社会化的表现形态,而为第三法域;早期以《德国民法典》为代表的大陆法系私法,比较完整地保留了传统私法要素,社会化表现微弱;加世纪以来,私法以"外接"与"内设"两种形态回应法的社会化要求;当代私法与私法学面临困境,私法将保持传统,不应、不能彻底社会化,社会法为实现向纵深发展的法律社会化的主要工具。~①

A Reflection on and A Critique to the Socialization of Private Law

This article points out that social law is neither part of private law nor manifestation of private law socialization,but the separated third law region.Early civil law system represented by German Civil Code comparatively completely preserved the essence of private law with weak socialization.Since the 20th century,private law has responded to socialization in two forms of external links and internal settings.While contemporary private law and its theory facing difficulties,following traditions would be the best way to go. It is improper and impossible for private law to be socialized in the core.Social law would be the main in- strument for the in-depth developing socialization of law.