合同法给付风险分配的法经济分析

Allocation of Payment Risk in Contract Law:An Economic Analysis

债的风险分为两个层次:给付风险与对待给付风险。英美法合同风险问题首先是第一层次即给付风险问题。英美经济分析法学认为,给付风险应分配给最佳风险承担者,即能以最小的成本控制风险或为其投保的当事人。我国合同法所借鉴的英美法严格责任原则,有时会对债务人过度苛严,可以借鉴英美经济分析法学之最佳风险承担者理论来缓解这种苛严性。

Debt-related risk includes the risk of payment and the risk of repayment. In Anglo-American law system, the risk of contract primarily refers to that of payment. However, the Anglo-American law of economic analysis argues that the risk of payment should be allocated to the superior risk bearers-those who could have prevented or insured against the risk at the lowest cost. Like Anglo-American law system, Chinese law of contract adopts the principle of strict liability, which can be over-rigorous for the debtors. It is suggested, therefore, that we use for reference the notion of ＂the superior risk bearers＂ to alleviate the strictness.