| （摘要内容经过系统自动伪原创处理以避免复制，下载原文正常，德语论文网站，内容请直接查看目录。） 本文努力于从汗青成长的角度考核给付不克不及轨制在德国债法中的变迁。笔者将对给付不克不及在德公法中的成长重要分为两个阶段来考核,即1900年《德公民法典》中的给付不克不及和2002年德国债法改造以后的给付不克不及。在剖析分歧阶段对于给付不克不及的划定的时刻,笔者重要从给付不克不及的轨制建构要素动手,对给付不克不及立法必需处理的几个焦点成绩睁开研究,愿望可以或许比拟周全和深刻地展现给付不克不及在德公民法中的轨制图景和给付不克不及的轨制变迁。这几个轨制要素是1、给付不克不及时合同的效率成绩;2、原给付责任的命运;3、次给付责任;4、双务合同情形下的看待给付责任;5、法定消除权规矩。在冗长地对德国给付不克不及法改造做出评述以后,笔者联合德国给付不克不及法与我国相干轨制的成长现状,剖析德国给付不克不及法的变迁对我们未来设计《平易近法典》能够带来的无益的自创和启发。笔者以为,在微观层面上,我国将来的平易近法典中应对给付妨碍法采用德国式的修改司法后果退路形式,即起首以“不实行”或以“责任之违背”作为给付妨碍的同一现实组成要件,把给付不克不及从一种本来占领中间位置的给付妨碍形状“降格”为“不实行”或许“责任之违背”的一种详细情况。但因为给付不克不及司法后果发生的特别性和它自己奇特的轨制功效,照样应当在债法总则对给付不克不及做出二级层面的特别划定。从微不雅轨制设计来看,德国给付不克不及法的变迁也能为我们供给多方面的启发起首,应摒弃将“标的能够”说明为《平易近法公则》第55条平易近事司法行动失效的第四项要件的一向做法,而在未来的平易近法典中明白划定,自始不克不及不作用合同效率,以根绝有益之争;其次,应自创《德国债法古代化法》的做法,把绝对给付不克不及,即现实不克不及和人身不克不及的划定也归入给付不克不及的规模,扩大给付不克不及之“内在”;最初,还应明白划定行动基本妨碍轨制(形式变革准绳),调和给付不克不及与行动基本妨碍的关系,二者从逻辑和系统上配合组成债务人现实实行要求权的界线。笔者以为,《德公民法典》是人类汗青上最巨大的法典之一,也是德国19世纪司法迷信的集年夜成者,个中任何划定都是经由了“千锤百炼”的,2002年的《德国债法古代化法》之所以没有破除饱受争议的给付不克不及轨制,必定有其深入的缘由。如今国际有学者主意经由过程“讹诈”、“严重误会”等轨制来处理给付不克不及的成绩,还有学者主意给付不克不及仅仅是一种现实状况,而不是一种背约形状,其重要目标在于弱化、否认给付不克不及的轨制功效,乃至撤消给付不克不及轨制。笔者以为这些不雅点都是值得疑惑和小心的。值得光荣的是,将来中公民法典的制订为我们供给了一次从新设计给付不克不及轨制的机遇,而德国给付不克不及法的变迁和得掉则可认为我们所自创。 Abstract: This paper from the historical development angle to pay cannot change assessment system in Germany in the law of debt. The of the payment means than in German public law of growth of for two stage assessment, the payment means in 1900 the German Civil Code "in late and in 2002, the German obligation law reform after the payment cannot. In the analysis of different stages of payment cannot delineate the moment the important from the rail of payment cannot construction elements begin, of the payment means less than legislation necessary to deal with several focal results open discussion, wishes can perhaps match thoroughly and profoundly revealed to pay means less than in the German civil code rail of picture and payment means less institutional change. This system is the efficiency score of 1, can not timely payment of the contract; 2, the original obligation of fate; 3, payment responsibility; 4, bilateral contract cases treat payment responsibility; 5, eliminate the right legal rules. After lengthy of German payment means less than transformation method comment after, the joint German payment means less than law and China's coherent status of the growth of the rail system, the analysis of German payment means less than the change in our future design the folk law can bring the unhelpful created and inspired. The author thinks, at the micro level, China's future plain near code in response to payment hinder the German modified judicial consequences retreat form, that is, first and foremost to "shall not" or "liability against" pay as the hinder of the same reality elements, the payment does not grams less than from an originally occupied payment of a middle position hinder the shape "downgrade" as "not implemented" or "responsibility of violation a details. But because of the special payment cannot judicial consequences and its own peculiar orbit of efficacy, still should be in the general provisions of the debt law of the payment means late to make second level particularly delineated. From the point of view of the micro payment system design, changes of German cannot method can also provide us with great first, should abandon the "subject to" will be described as "always do fourth elements of civil law," article fifty-fifth civil judicial action failure, and in the future civil code clearly defined, since it cannot affect the efficiency of the contract, to eradicate the beneficial struggle; secondly, should learn from the "law" of the ancient German debt law practice, the absolute payment cannot, that can't delineate and personal reality cannot also classified payment cannot scale, payment can expand as the "inner"; originally, should also stipulate the basic action system (in the form of change hinder principle), cannot reconcile payment and interfere with the two basic operations, from logic and system with the reality of the debtor The implementation of border claims. The author thinks, "German Civil Code" is the history on the great code of, Germany is the 19th century judicial superstition of, medium any designated are through the "tempered", in 2002 the German law of obligation in ancient law "there is no reason to get rid of full by controversial payment means less than rail system, there must be its in-depth reason. Now international scholars idea through the process of "blackmail", "serious misunderstanding" rail system to handle payment means less than grades, and scholars idea payment means not only is a kind of realistic condition, and not a covenant shape, the important goal is weakening, denied to pay cannot track of efficacy and undo payment cannot track system. I think these indecent point is worth careful and doubts. Fortunately, the future development in the civil code has provided us with a new design from the payment system cannot change the opportunity, and the German law and cannot pay off is that our own. 目录: |
