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一、背景传统宪法理论认为,宪法是公法,调整国家和公民之间的关系;家庭法是典型的私法,调整私人家庭成员之间的关系,二者似乎不会产生交集。但二战以后,这种公私二元分立的观念越来越受到理论和实践的摒弃。无论是德国的“第三者效力”理论还是美国的“政府行为”理论抑或日本的“统治行为”理论,虽然其理论基础和具体内容有别,但无一例外地强调宪法对私人领域的介入。
I. Background The traditional constitutional theory holds that the constitution is public law and adjusts the relationship between the state and the citizens. Family law is a typical private law that adjusts the relationship between private family members, and the two do not seem to be intersected. However, after World War II, this concept of public-private dualism was increasingly rejected by both theory and practice. Both the theory of “third-party effectiveness” in Germany and the theory of “government behavior” in the United States or the “governing behavior” in Japan, although their theoretical basis and concrete content are different, emphasize without exception Constitutional involvement in the private sphere.