David Dudley Field and His Draft of Civil Code for New York——Re-discussing the right and wrong of codification after one and a half century

摘要

【中文摘要】一个半世纪前,在普通法背景下的美国纽约州,菲尔德提出法典编纂计划并于1862年制定了《纽约民法典草案》,该计划遭到了以卡特为代表的学者强烈反对,双方就是否要进行民法典编纂展开大战,并最终于1888年以该草案被纽约州议会否定而终结。该法典草案分为人、财产、债和一般规定四编,是用大陆法系的组织法律材料的方法整合普通法制度的一次尝试,在法典的宏观结构和具体制度上都具有一些特色。虽然它最终在原产地遭到了失败,但对美国其他一些州甚至是国外的法典编纂产生了一定的影响。现在,我们能够对该次法典编纂之是非做出我们正确的评价。【英文摘要】One and half century ago, in New York with the background of Common Law, Field put forward a plan of codification and as a result the Draft of Civil Code for New York was constituted in 1862, but Carter,as a representative of many scholars, strongly argued against the plan, then the two parties debated profoundly if it was necessary to compile a Civil Code, and in 1888 this debate was ended by the rejection of the Civil Code aforementioned by the parliament of New York's State. The code is divided into four books , namely , person , property , obligation and general provisions , which is one attempt to deal with the institutions of Common Law by the method of organizing the legal materials of Continental Law system , and it has some special characteristics both in the macroscopical structure and in the concrete institutions. Although it was abandoned at its original place , it has produced a certain influence to the codifications of other states of USA , even to that of other foreign countries. Now we can give a proper evaluation to the right and wrong ofthis codification above-mentioned.