私权一般理论与民法典总则的体系构造——德国民法典总则的学理基础及其对我国的立法启示

The General Theory of Private Right and the Structure of General Part of Civil Code

近代德国民法学中的私权一般理论是德国民法典总则赖以形成的学理基础,民法典总则在本质上属于私权通则。民法典总则具有充分的方法论依据与实用价值。我国未来民法典应该设立总则,总则的体系构造应当以私权(民事权利)的一般原理体系作为逻辑基础。民法草案总则的体系存在缺陷,应当予以完善。

The general theory of private right in modern German civil law science is the theoretical foundation of the general part of BGB. In essence, the general part of Civil Code consists of general principles of private right. There is substantial methodological basis for the general part of Civil Code, which is also of high practical value. China＇ s prospective Civil Code should include the general part, the system of which should be built on the foundation of the general theory of private right. The system of general part of the present draft of Civil Code has some defects that should be improved.