论债法中本土化概念对统一的债法救济体系之影响

发布时间：2018-10-18 14:04

【摘要】：我国民法在移植的过程中,不仅有立法继受,还有学说继受,再加上在"中国特色"名义下的"本土化"概念创造,又无立法机关公布的"立法理由书",使得对现行立法中诸多制度的解读发生重大争议。这些争议不仅影响了学术研究,而且影响了司法实践。债法中的"违约责任"就是在民法继受过程中自创的本土化概念之一,自从其诞生后,就在我国法学研究和司法实践中产生了不良影响。在"瑕疵履行"已被许多大陆法系国家纳入到"债务不履行"的范畴中去的今天,我们的学理对我国《合同法》关于"瑕疵履行"与"违约责任"的关系问题仍然存在争议;对"合同解除"是否属于"违约责任"问题也存在争议。我们应该建立统一的"合同义务违反"概念,进而统一对违反合同义务的救济手段,以消除违约救济中的不协调问题。在未来的民法典中,应坚定地将合同作为债的发生原因,将"违约"作为"债务不履行"类型,将违约救济作为债务不履行的后果对待。
[Abstract]:In the process of transplanting Chinese civil law, there are not only legislative succession, but also doctrine succession, plus the "localization" concept creation under the name of "Chinese characteristics". There are no legislative reasons published by the legislature, which makes the interpretation of many systems in the current legislation controversial. These disputes not only affect academic research, but also affect judicial practice. The "liability for breach of contract" in the law of debt is one of the local concepts in the process of civil law succession. Since its birth, it has had a negative impact on the legal research and judicial practice in our country. Today, "defective performance" has been brought into the category of "non-performance of debt" by many civil law countries, our theory still has controversy on the relationship between "defective performance" and "liability for breach of contract" in contract Law of our country; There is also a dispute about whether the termination of contract is a liability for breach of contract. We should establish a unified concept of "breach of contractual obligation", and then unify the means of relief for breach of contractual obligation, so as to eliminate the uncoordinated problem in the remedy of breach of contract. In the future civil code, the contract should be regarded as the cause of the debt, "default" as the type of "non-performance of debt", and relief of default as the consequence of non-performance of debt.
【作者单位】：中国政法大学;
【分类号】：D923

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