亲属法伦理本质的人性之维——由婚姻法司法解释（三）引发的思考

《婚姻法解释(三)》出台至今,备受争议,而对亲属法的定性及其深层阐释则是解决此问题的前提。亲属法的正当性问题体现为其定性问题。无论从"形式"与"实质"这一范畴还是从亲属法的正当性这一角度来进行思考和认定其定性问题,伦理本质都是对亲属法性质的当然回答。从历时性角度研究亲属法伦理本质的关键在于厘清人性是亲属法与其伦理的共同的、原初的出发点和对象。人性涵盖"人的动物性"和"人的特性"两重性,统摄人的生理需要和精神需要两层次,这些构造因素经由道德评价机制转化为婚姻家庭伦理,再同构化为亲属法规范。

A Human Nature Perspective on Ethical Nature of Family Law

The Interpretation (the 3rd) of the Marriage Law of P.R.C has been controversial since it was issued so far. The premise to solve this controversial problem is how qualitative analysis and theoretical expatiations can be carried out on the nature of Family Law which is the connotation of its legitimacy. The ethical nature is the nature of Family Law in qualitatively analyzing it either from the category of substance and forms or from the angle of legitimacy of Family Law. It is the key that the study on ethical nature of Family Law is emphasized on the theory of human nature that is the original starting point shared by Family Law and its ethics from a diachronic perspective. The human nature consisted of the animality and characteristics of man which is respectively involved physical and spiritual needs of man can be transformed into marital family ethics by moral evaluation mechanism and then homogenized into regulations of Family Law.