论文部分内容阅读
近代以来的契约法依次经历了以下三个理论阶段:古典契约法理论、新古典契约法理论和现代契约法理论。关系契约理论是契约法社会化浪潮的理论成果,旨在解决关系性契约难题,是古典契约法“死亡”后有关市场交换之法理建构中最有前途的理论选择。但由于关系契约理论承继了法社会学研究方法的弱点,导致它不管是理论上还是实务上都存在诸多难以克服的困境,比如理论不周延、无法建构关系契约法、对司法审判价值不大等。西方先进契约法理论为中国契约法治的现代化提供了参考,也预设了限度和难度。
Since the modern contract law has gone through the following three stages: the theory of classical contract law, the theory of neoclassical contract law and modern contract law theory. The theory of contractual relationship is the theoretical result of the socialization tide of contract law and aims to solve the problem of relational contract. It is the most promising theoretical choice in the legal construction of market exchange after classical contract law “death ”. However, since the theory of contract of contract inherits the weaknesses of the research methods of legal sociology, it leads to many insurmountable dilemmas both in theory and in practice. For example, the theory is not extended, the relationship-contract law can not be constructed, the value of judicial adjudication is not so great . The theory of advanced contract law in the West provides a reference for the modernization of the Chinese contract law and also prescribes limits and difficulties.