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法治已被时代证明并普遍接受为一类比较成功和发展成熟的国家与社会治理模式,但我们应意识到,建立在西方法律移植基础上的法治内核理念和制度精髓,与当前我们的社会经济政治环境和文化传统不一定完全匹配。当前民法典编纂成为热潮,《民法总则》征求意见稿近期已发布。本文拟以德国民法典为典型,通过对作为西式民法灵魂的载体——理性人的分析,对照当下中国社会之特性,阐释所引进的西方民法制度中关于人之理念与现实的紧张,为民法典的编纂如何更好适用于传统与现代交织的中国社会提供一些思路。
The rule of law has been proved and generally accepted by the times as a type of state and social governance model that has been relatively successful and mature but we should be aware that the essence of the concept and system of the core of the rule of law established on the basis of Western legal transplantation is not compatible with the current social and economic conditions of our society The political environment and cultural traditions do not necessarily match exactly. The current compilation of civil code has become a craze, “Civil Law” draft has recently been released. This article intends to take the German Civil Code as a typical example. By analyzing the characteristics of the present Chinese society as an example of the soul of the Western Civil Law, this article attempts to explain the concept of the people in the Western civil law system and its reality, How the codification of codification can be better applied to the traditional Chinese society and the modern intertwined to provide some ideas.