约法的历史回溯与法源界定

约法不同于律、令、科、比、格、式、敕等传统立法,学界对约法的正式法源地位仍有争议。我国传统与现代都有约法实践,"约法三章"是约法的起源,"约法十二条"是约法的继替,《中华民国临时约法》是约法的典型,现代立法亦更加强调民约性。约法系新旧时代更迭,新政权主导,官与民相约,规范重大事项,打击严重犯罪,确立百姓权利,以夺取或巩固政权为动因的特殊立法,具有主体民约性、形式非典性、内容侧重性、效力特殊性,发挥规制、保护、秩序作用,且各个历史时期的约法暗藏联系。

Historical Retrospect and Origin Definition of "Yue Fa"

" Yue Fa " was different from Relative Laws, Orders, Regulation, Ratio, Case, Type, Chi and other legislations, the formal legal source status of " Yue Fa " is still controversial in academic circles. There are legal practices both in traditional and modern China. " The three chapters of treaty law" was the origin of " Yue Fa ", " the twelve articles of treaty law" was the succession of "Yue Fa ", and the Provisional Convention Law of the Republic of China was a typical example oft " Yue Fa ", modern legislation also emphasizes civil covenant more. With the change of the new and old times, the new regime leading, the agreement between officials and the people, the regulation of major matters, the fight against serious crimes, the establishment of the rights of the people, and the special legislation motivated by the seizure or consolidation of political power, the " Yue Fa " system has the characteristics of the main body, the form of atypia, the content focusing, the effectiveness particularity, and plays the role of regulation, protection and order, and the covenants of different historical periods had hidden links.