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近年来颇受学界关注的债法总则问题,主要是如何构造债法总则而不是未来民法典应否设置债法总则。从比较法上看,债法总则的结构与体系并非纯粹以形式逻辑方法运算(提取公因式)的产物,而是在民法典、债法(编)的结构性制约下更多考虑规范之间内在的逻辑关联而取舍的结果。债法总则的构造必然牵涉我国现行民事法律的调整或重构,应把它看作民法典编纂的问题之一,不应像制定《合同法》、《侵权责任法》那样制定单独的债法总则。在未来民法典应在总则编规定法律行为制度、应将债法拆分为三编予以规定的共识下,最好借鉴《欧洲示范民法典草案》的做法,在严格区分作为典型法律行为的合同与由合同产生的债权、债务关系的思路下,以“合同及其法律行为”为章名构造法律行为制度,并将《合同法》第二章、第三章置入民法总则编,债法总则编主要规定与债之效力或与合同的效力有关的规则。如此之下,债法的第二编应以“典型合同”为名,详细规定各类典型合同;债法的第三编应以“非合同之债”为名,集中规定由侵权行为、无因管理、不当得利等法律事实产生的债权、债务关系。
In recent years, the academic circles concerned about the issue of the general law of debt, mainly how to construct the general principle of debt rather than whether the future civil code should be the general provisions of the law. From the perspective of comparative law, the structure and system of general rules of debt are not the product of purely logical operation of logic (extraction of common factors), but rather more consideration of norms under the structural constraints of civil code and debt law Between the internal logic and the result of trade-offs. The construction of the general rule of debt law must involve the adjustment or reconstruction of the current civil law in our country. It should be regarded as one of the issues codified in the Civil Code and should not be formulated as a separate debt law as the “Contract Law” and “Tort Liability Act” General In the future civil code should be in the general provisions of the legal act system should be divided into three copies of debt law provisions of the consensus, it is best to learn from the “European Model Code Draft” practice, the strict distinction between the typical legal acts of the contract Under the idea of the relationship between creditor’s rights and debt arising from the contract, the legal action system is constructed with the title of “Contract and its legal action ”, and the second and third chapters of the Contract Law are incorporated into the general rules of civil law, General principles of the law The main provisions of the law and the effectiveness of the debt or contract with the effectiveness of the rules. In this way, the second part of the debt law should be “typical contract ” in the name of the detailed provisions of various types of typical contracts; third part of the debt law should "non-contract debt Tort, no due to management, unjust enrichment and other legal facts arising from the debt, debt relationship.