再论人身关系——兼评民法典总则编条文建议稿第3条

本文在研究了人身关系在我国民法史上的存在形态及比较了前苏联、中国和西方主要国家有关人身关系的学说的基础上,认为我国绝大部分民法学者对人身关系的理解不同于西方主要国家学界对此种关系的理解,我国在人身关系的理解上遗漏了主体资格问题,将“人”仅仅理解为人格权,并进而导致了这种关系的重要性的降低,造成了其在立法相关条文中被后置于财产关系。作者最后指出,人身关系应包括人格关系、人格权关系和身份关系三类关系,并进而建议对民法典总则编建议稿第3条做出人身关系前置的立法调整。

A Re - Study on Personal Relations

Based on the researches about the theories on personal relationship in China and on a comparative analysis of such doctrines about this issue in Soviet Union, in China and in the Western world, this article insists on that the understanding about personal relationship of majority Chinese scholars in civil law is different from that of the scholar in the main western countries. The understanding about personal relationship of Chinese scholars has omitted the elemente of quality of subject , therefore the personality law is only explained as a law about the personal right. As a result the personality law was debased its importance and has been placed after property law in the legislation. Finally, this article indicates that the personality law should include in the stipulation about personality relationship, about the relationship of personal right and status relationship, and suggests that in the stipulation of advicing draft of China civil code about the object of civil law, the personal relationship shall be placed before the property relationship.