优良家风进入民法典,可有效化解婚姻家庭法独特的社会化要求与其并入民法典后的社会化相对不足之间的矛盾。优良家风条款通过导入家庭在身份法上的主体地位、明确家庭关系中行为正当性判断的公共秩序范围与来源,以及制衡婚姻家庭法的财产法化倾向,可有效反映婚姻家庭法的伦理性。优良家风条款的效力构成包含了旨在规制家庭权力、社会权力与国家权力的组织规范效力,以及推动道德教化的倡导性规范效力,但其核心是引导司法过程的行为规范与裁判规范效力。在具体适用上,应着重实现优良家风在处理监护人“失管失教”与家庭成员造成外部损害之间的关联性证明、在合理维护家庭稳定与个人自由之间的平衡,在限制假借身份行为谋取不当财产利益行为的功利性效力,以及在创设基于优良家风的独立法益等方面的规范功能。

The entry of good family custom into the Civil Code can effectively resolve the contradiction between the unique socialization requirements of marriage and family law, and its relative lack of socialization after being incorporated into the Civil Code. Good family custom clauses can effectively reflect the ethics of marriage and family law by introducing the family's dominant position in identity law, clarifying the scope and source of public order for judging the legitimacy of behavior in family relations, and checking and balancing the property-law tendency of marriage and family law. The effects of the good family custom clause include the organization effect aimed at regulating family power, social power and state power, and the advocating effect for promoting moral education. However, its core lies in its behavioral normative effect for guiding the judicial process and its referee normative effect. In terms of specific application, we should focus on realizing the normative function of good family custom clauses, including proving the relationship between guardian's “losing control and education” and external damage caused by family members, balancing the family stability and personal freedom value, limiting the seeking of improper property interests by means of identity behavior, and creating independent legal interests based on good family custom, etc.