加害给付法律问题研究
发布时间：2018-09-06 13:27
【摘要】： 加害给付又称积极侵害债权,源于德国,在台湾地区称为不完全给付。其提出的初衷就在于弥补德国法上的漏洞,加强对债权人的保护。日本、台湾等国家或地区也受此理论的影响。本文力图就此问题作广泛的介绍,并试探性的对此予以分析和研究。 本文除引言和结语外,分为四个部分: 第一部分回顾加害给付制度的历史沿革,以德国民法和我国台湾地区的民法为主线,比较研究德国法上的积极侵害债权与台湾民法上的不完全给付制度,探讨其规范目的及功能。积极侵害债权在传统的《德国民法典》上并未规定,之后《德国债法现代化法》颁布的新履行障碍法,将传统的“履行不能”与“履行迟延”与“积极侵害债权”相结合,弥补法律上的漏洞。台湾地区的不完全给付制度是与物之瑕疵担保责任并存的债的不履行情形,也在客观上调整了加害给付问题。 第二部分研究加害给付的构成要件,通过分析德国以及台湾地区的相关制度界定加害给付制度的概念和类型。笔者认为加害给付需要如下几项构成要件:(1)当事人之间存在一个合法有效的合同关系;(2)债务人已经履行了债务;(3)债务人履行债务不适当;(4)债务人的不适当履行造成了债权人履行利益以外的其他利益的损害;(5)债务人具有过错。 第三部分主要探讨加害给付制度中的责任竞合理论,主要包括法条竞合说、请求权竞合说、请求权规范竞合说。以上的三种学说分别从不同角度解决责任竞合情形下双重给付的弊端,有各自的优势,但也有自身存在的缺点。 第四部分研究加害给付制度中的精神损害赔偿等问题。传统民法理论认为精神损害赔偿不能精确计算,不能通过合同之诉来给与补偿,但在一些特定的合同中承认精神损害赔偿已经得到大多数立法者的认可与赞同。所以在加害给付造成受害人精神损害时,应当允许其在选择违约责任时一并主张,对受害人给予完全的保护。 最后,本文对整篇文章的重点部分做了归纳总结,作为结论。 理论和司法实践的发展为加害给付的合理解决提供了契机,笔者深信,随着法律的发展与理论界研究的不断深入,加害给付问题将会有更加完善的解决方法。
[Abstract]:Injurious payment, also known as aggressive infringement of creditor's rights, originated in Germany and is called incomplete payment in Taiwan. Its original intention is to close the loopholes in German law and strengthen the protection of creditors. Japan, Taiwan and other countries or regions are also affected by this theory. This paper tries to make a broad introduction to this issue, and tentatively analyzes and studies it. In addition to the introduction and conclusion, this paper is divided into four parts: the first part reviews the historical evolution of the injurious pay system, taking the German civil law and the civil law of Taiwan as the main line. This paper makes a comparative study of the positive infringement of claims in German law and the incomplete payment system in Taiwan's civil law, and discusses its normative purpose and function. Positive infringement of creditor's rights is not stipulated in the traditional German Civil Code. The new law on obstacles to performance promulgated by the German Law of Modernization of the German debt Law combines the traditional "impossibility of performance" with "delay in performance" and "positive infringement of creditor's rights". Fill a loophole in the law. The incomplete payment system in Taiwan is the non-performance of the debt which coexists with the imperfection guarantee liability, and it also adjusts the problem of injurious payment objectively. The second part studies the constitutive elements of injurious pay, and defines the concept and type of injurious payment system by analyzing the relevant systems in Germany and Taiwan. The author believes that the following elements are necessary: (1) there is a legal and effective contractual relationship between the parties; (2) the debtor has fulfilled the debt; (3) the debtor has not performed the debt properly; (4) the debtor has not properly performed the debt; (4) the debtor has made improper performance. It is the damage of other interests other than the creditor's performance; (5) the debtor is at fault. The third part mainly discusses the theory of liability concurrence in the system of injurious compensation, mainly including the theory of competing articles of law and the theory of normative concurrence of claim rights. The above three theories have their own advantages, but also have their own shortcomings. The fourth part studies the compensation for mental damage in the system of injurious compensation. The traditional civil law theory holds that moral damage compensation cannot be calculated accurately and can not be compensated through contract action. However, in some specific contracts, the recognition of moral damage compensation has been approved and approved by most legislators. Therefore, the victim should be allowed to claim the full protection of the victim when choosing the liability for breach of contract. Finally, this paper summarizes the key part of the whole article, as a conclusion. The development of theory and judicial practice provides an opportunity for the reasonable solution of injurious payment. The author is convinced that with the development of law and the deepening of theoretical research, there will be more perfect solutions to the problem of injurious payment.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D913
本文编号：2226482
[Abstract]:Injurious payment, also known as aggressive infringement of creditor's rights, originated in Germany and is called incomplete payment in Taiwan. Its original intention is to close the loopholes in German law and strengthen the protection of creditors. Japan, Taiwan and other countries or regions are also affected by this theory. This paper tries to make a broad introduction to this issue, and tentatively analyzes and studies it. In addition to the introduction and conclusion, this paper is divided into four parts: the first part reviews the historical evolution of the injurious pay system, taking the German civil law and the civil law of Taiwan as the main line. This paper makes a comparative study of the positive infringement of claims in German law and the incomplete payment system in Taiwan's civil law, and discusses its normative purpose and function. Positive infringement of creditor's rights is not stipulated in the traditional German Civil Code. The new law on obstacles to performance promulgated by the German Law of Modernization of the German debt Law combines the traditional "impossibility of performance" with "delay in performance" and "positive infringement of creditor's rights". Fill a loophole in the law. The incomplete payment system in Taiwan is the non-performance of the debt which coexists with the imperfection guarantee liability, and it also adjusts the problem of injurious payment objectively. The second part studies the constitutive elements of injurious pay, and defines the concept and type of injurious payment system by analyzing the relevant systems in Germany and Taiwan. The author believes that the following elements are necessary: (1) there is a legal and effective contractual relationship between the parties; (2) the debtor has fulfilled the debt; (3) the debtor has not performed the debt properly; (4) the debtor has not properly performed the debt; (4) the debtor has made improper performance. It is the damage of other interests other than the creditor's performance; (5) the debtor is at fault. The third part mainly discusses the theory of liability concurrence in the system of injurious compensation, mainly including the theory of competing articles of law and the theory of normative concurrence of claim rights. The above three theories have their own advantages, but also have their own shortcomings. The fourth part studies the compensation for mental damage in the system of injurious compensation. The traditional civil law theory holds that moral damage compensation cannot be calculated accurately and can not be compensated through contract action. However, in some specific contracts, the recognition of moral damage compensation has been approved and approved by most legislators. Therefore, the victim should be allowed to claim the full protection of the victim when choosing the liability for breach of contract. Finally, this paper summarizes the key part of the whole article, as a conclusion. The development of theory and judicial practice provides an opportunity for the reasonable solution of injurious payment. The author is convinced that with the development of law and the deepening of theoretical research, there will be more perfect solutions to the problem of injurious payment.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D913
【引证文献】
相关硕士学位论文 前1条
1 牛登峰;加害给付请求权类型化的研究[D];兰州大学;2012年
，本文编号：2226482
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