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中国的法制现代化是在过度地解构“家”的意义上进行的,淡化甚至排斥亲属的立法风格与社会现实构成了强烈的反动,由此导致了法律文本与现实世界之间呈现出巨大的张力,而恰恰是这种张力为活跃的司法留下了很大空间。出于解决纠纷的需要,司法必须以更贴近民众生活的方式来运作。因此,当代的中国亲属司法表现出更多的灵活性、创造性,呈现出与法律文本很大的差异性。围绕着纠纷的解决,在司法的运作过程中形成了一套相对独立的实践性规则,这套规则具有鲜明的“行动中的法律”的特征。这种文本表达与实践运作之间的复杂性矛盾所引发的是关于亲属领域立法和司法的规范化问题的思考,特别是在当下民法典制定的背景下,做这样的思考更具特殊的意义。
China’s modernization of the legal system is carried out in the sense of excessive deconstruction of the “home”. The legislative style of diluting and even excluding relatives constitutes a strong reactionary reaction with the social reality, which has led to a huge reaction between the legal text and the real world Tension, and it is precisely this tension that has left ample room for active justice. For the sake of resolving disputes, the judiciary must operate in a manner that is closer to the life of the people. Therefore, the contemporary Chinese relatives’ judiciary shows more flexibility and creativity, showing a great difference from the legal texts. Around the settlement of disputes, a relatively independent set of practical rules has been formed during the operation of the judicial system. This set of rules has the distinctive feature of “law in action”. The contradiction between the complexities of text expression and practice leads to the thinking on the standardization of the legislation and judicature in the field of relatives. Especially in the current context of the formulation of the Civil Code, it is of more special significance to do such thinking.