法律渊源理论有立法和司法两大立场的区分,民法的渊源应当定位于司法立场,这由民法的属性决定。民法是市民法,市民生活是民事裁判中法律渊源的来源;民法是私法,民法渊源的外延具有开放性;民法是权利法,法官对民事权利的救济,不应局限于制定法,还应当发现其他法律渊源中蕴含的权利需求。 The legal origin theory has the distinction between legislative and judicial positions. The origin of civil law should be located in the judicial position, which is determined by the properties of civil law. Civil law is the civil law, civic life is the source of legal origin in civil judgment; civil law is private law, the extension of the origin of civil law is open; civil law is the right law, the judge relief of civil rights should not be confined to making law, should also find other The Rights Needed in Law Origins.