试论中国古代固有民法的开放性体系

近年来法律史研究中对正律以外的大量史料的考证足以说明:既然中国古代曾有辉煌的国际和国内贸易是不争的事实,且调整这些社会关系的大量的行为规则和裁判规则的存在亦不容置疑,那么,只要转换思路,从实质意义上的民法渊源的角度来看问题,就不但可以发现中国古代固有民法的实在体系,而且能够概括出其特有的调整模式。这无疑对目前我国民法典的编纂同样具有重要的现实意义。

On the Opening System of the Inherent Civil Law in Ancient China

After studying the question whether there was a civil law system in ancient China, the author has realized that the recent research of mass historical materials, other than the official statutes, has undoubtedly explained the fact that there had been prosperous national and international trade in ancient China, as well as a large number of regulations applicable to acts and rulings to adjust the social relationships concerning trade. To see from the civil law sources in its substantive sense, one can not only discover the positive system of the inherent civil law system in ancient China, but can also generalize its specific adjusting mode. It must have great realistic significance for the codification of the civil law code of China.