一、引言20世纪以来,传统民法和民法典正在经历一场危机。为应对社会的快速发展,各国无不在民法典之外制定特别法。“《劳工法》以前全属私法领域,现在由于社会福利思想之发达,业已归入公法之内,成为经济法之一部分。”~①此外,《消费者权益保护法》(以下简称《消法》)、《反不正当竞争法》《产品责任法》都形成相对独立的法律部门并被纳入经济法范畴。这些特别法不但从外在体系上对传统民法形成冲击与竞争,而且在内在理念上对传统民法进行肢解与分割;案件以特别法而非民法典为裁判依据,只有在特别法没有规定的时候,才转向传统法典以寻觅判案的依据。~②由于特别法层出不穷,导致民法体系支离破碎,“法典解构”一时间成为反传统的思潮……这些因素引起了民法空心化乃至民法危机,并导 I. INTRODUCTION Since the 20th century, traditional civil law and civil code are undergoing a crisis. In order to cope with the rapid development of society, all countries are enacting special laws outside the civil code. In the former field of private law, the “Labor Law” was now part of the Economic Law due to the well-developed social welfare theory and has become part of the Economic Law. “” In addition, the Consumer Protection Law (hereinafter referred to as the “ Consumer Law ”),“ Anti-Unfair Competition Law ”“ Product Liability Law ”have formed a relatively independent legal department and are included in the scope of economic law. These special laws not only impact and compete with the traditional civil law from the external system, but also dismember and separate the traditional civil law from the internal concept. The case is based on the special law rather than the civil code, and only when the special law does not stipulate Before turning to the traditional code to find the basis for judgments. ~ ② As a result of the advent of the lex specialis, civil law system fragmented, “Code deconstruction ” became an anti-traditional ideological trend for a time ... These factors caused the civil law hollow and civil law crisis and lead