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沈家本(1849-1913),是晚清时期的一位具有维新改良思想的官僚,同时他通晓中国传统法律,是“贯通古今,融会中西”的著名法学家。杨鸿烈先生曾形容他“是深了解中国法系,且明白欧美、日本法律的一个近代大法家。中国法系全在他手里承先启后,并且又是媒介东方西方几大法系成为眷属的一个冰人”[1]。“冰人”是媒人的另一种称谓。清朝末期,沈家本主持了一系列修订中国传统法律的工程,将中西法律之形式内容融为一炉,开创了中国法律改革史与发展史上的一个新纪元。从将西方法律的枝干嫁接到中国法律体系大树这个角度上来看,沈家本确实做了一个顶大的媒,促成了中西法律体系的结合,也算是“终成眷属”了。本文将着重对沈家本先生在中西法结合中呈现的比较法思想谈一点意见。
Shen Jiaben (1849-1913), a bureaucrat with the idea of reform and reformation in the late Qing period, knew well the traditional Chinese laws and was a famous jurist who “worked through both ancient and modern China and the West”. Mr. Yang Honglie once described him as a modern Dafa expert who understands the Chinese legal system and who understands the laws of Europe, the United States and Japan. After all the Chinese legal systems were first established in his own hands, they were also ice that became the dependents of several major legal systems in the East and West. People “[1]. ”Iceman " is another title of the matchmaker. In the late Qing Dynasty, Shen presided over a series of projects to amend the traditional Chinese laws and put the content of the Chinese and Western laws into a furnace, setting a new era in the history of law reform and development in China. From the perspective of grafting the branches of western law into the big tree of the Chinese legal system, Shen Jiaben really did a top media and contributed to the combination of Chinese and Western legal systems. This article will focus on Mr. Shen Jiaben’s views on the comparative law presented in the integration of Chinese and Western law.