代物清偿中的合意基础与清偿效果研究

发布时间：2018-03-04 23:36

本文选题：代物清偿　切入点：要物合同　出处：《中外法学》2015年01期 　论文类型：期刊论文

【摘要】：虽然我国没有规定代物清偿制度,但最高院近年的公报案例已经承认这种法律关系,并将之看作是要物合同,这种观点以我国民法理论为基础。但这种做法会引发一系列问题,混淆清偿与要物行为的关系,把代物清偿协议看作是一种缔结要物合同的预约,甚至否认了未实际履行的清偿协议的效力,有违意思自治的原则。从私法史上看,代物清偿与要物合同是相互独立的,只是随着代物清偿与买卖合同的趋同,才引入了要物合同来区分它与买卖合同及债的更新这些近似制度。现代民法理论不再类推典型合同来构造它的法律关系,而从清偿合同的角度把它看作是以实现债权人对替代物的满足为目的的诺成性合同。这种趋势在最高院判决中初现端倪,未来的民法典应该采纳。
[Abstract]:Although China does not provide for a system of settlement of goods, the Supreme Court's recent communique cases have recognized this kind of legal relationship and regarded it as a contract in rem. This view is based on the theory of civil law in our country. However, this kind of practice will lead to a series of problems. By confusing the relationship between liquidation and material behavior, the subrogation agreement is regarded as an appointment to conclude a contract of goods, and even denies the effect of an unfulfilled settlement agreement, which is contrary to the principle of autonomy of will, which is seen from the history of private law. The subrogation is independent of the important contract, but with the convergence of the subrogation and the sale contract, It was only then that the material contract was introduced to distinguish it from the renewal of the contract of sale and purchase and the renewal of the debt. The modern theory of civil law no longer simulates the typical contract to construct its legal relationship. From the perspective of liquidating contract, it is regarded as a promise contract with the purpose of realizing the satisfaction of creditors to substitute goods. This trend appears in the judgment of the Supreme Court, and the future civil code should be adopted.
【作者单位】：上海交通大学凯原法学院;
【分类号】：D913

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