新中国法治历程:民法56年

以1978年中共十一届三中全会和1992年十四大为界,中国民法的发展大致可分为三个时期,从1949-1978年是破而未立的萌芽时期;1978-1992年是抗争僵化的理论教条、重新探求法学自身正当存在权利和发展规律的过渡时期,出现了《民法通则》这一基本立法;十四大后至今民法科学得以重建,从《民法通则》走向起草中的《民法典》,民事立法也空前繁荣。从民法基本理论和立法实证的变迁中可清晰地读出新中国经历“人治”转向“法治”的基本历程。

The Way to Rule-of-law in New China: A Review of Civil Law in a History of 56 Years

By the Third Plenary Session of the Central Committee of the 11th Party Congress in 1978 and the 14th Party Congress in 1992, we can divide the development of Chinese Civil Law into 3 phases: The first, from 1949 to 1978, is a budding phase, in which the old civil law system was broken while the new one didn't come into existence as a substitution. The second, from 1978 to 1992, is a transitional phase, in which the very rights and rules of the civil law were explored, bringing forth the General Principles of Civil Law. The third, from 1992 till now, is a prosperous phase, in which full-scale civil law science has been re-established, and the legislation of civil laws become very prosperous, with the fledging Civil Code in replacement of General Principles of Civil Law. From this transition, we can clear get the message that the Chinese legal system underwent a process from rule by man to rule of law.