傳統的 民法觀念과 現代 民法의 體系 —中國 古代 民法 價値의 再論—

The debate about whether the civil law existed in ancient China or not began in early twentieth century and ended in the nineties of twentieth century. The research about this problem had extended to the question of why ancient China couldn’t develop western civil law thinking or civil law methodology. On that basis, we may think about following questions : What is today’s value and significance of the existence form of ancient Chinese civil law. In ancient China, due to the basic community economical restriction, completely using punitive thinking for national legislation and the governance patterns of “civil case be concurrently in charge of criminal court”, adding to the conditional thinking of ruling the country by virtue, it was hard for modern western concept of civil law and civil law system to blend in Chinese ancient traditional society. Besides, this difference is closely related with Chinese traditional ideas of "moral" and "profit" and the modesty of criminal law. Although we have not answer the question that why Chinese civil law is quite different from western(mostly expressed as "modern") civil law on perspectives of autocracy, small-scale peasant economy, morals, and the self-sufficient social structure yet, the unique style of Chinese traditional civil law and the wisdom in it deserve more attention and studies.