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《民法总则》征求意见稿第十条确定了法律和习惯的民法渊源地位,法理被排除在外,这折射出法学理论研究、司法审判与法律实务的闭环被割裂,而闭环被割裂对法学理论、司法审判及法律实务有着重大的影响。建议《民法总则》应确立“法理”的民法渊源地位。一问题的提出民法典的编纂在本质上乃是重塑一个国家在民事领域的法源体系的工作,同时也是基于新的社会经济和技术条件,充分划分立法与司法边界的过程。
Article 10 of the “Draft Civil Law” draft of the Opinion establishes the source of law and practice as a source of civil law and excludes legal jurisprudence. This reflects that the closed circle of jurisprudence research, judicial adjudication and legal practice has been severed while the closed loop has been severed. Judicial adjudication and legal practice have a significant impact. It is suggested that “the general rules of civil law” should establish the origin of the “legal principle” of civil law. A problem put forward The compilation of civil code is essentially the remodeling of a country’s legal system in the field of civil work, but also based on new socio-economic and technological conditions, the full division of legislative and judicial boundaries process.