论两大法系代理制度统一的基础——通过古罗马法学家的发现

The Foundation of the Unification of the System of Agency in Statute Law and Common Law:by the Discovery of Roman Jurists

代理,这一自古罗马就存在于经济和法律中的现象,在被大陆法系民法学抽象理性化后形成的现代代理制度所牺牲的个性在其起源之时曾是自然的存在,如能回归这些自然的个性,将会使得大陆法系和普通法系的代理制度走向融合。施米托夫提出的特别代理制度对罗马法代理概念的回归,可以说是现代代理制度对实践理性的一种回归。在罗马法基础上寻求两大法系代理制度的统一,不是要套用罗马法的代理制度,而是在面对日益变化的社会经济实践和层出不穷的代理现象时,现代代理制度对过度理论理性的反省。

Agency was a phenomenon long existed in the world of economy and law in Rome history.Those specialties of agency which were abandoned when it was Abstracted and theorized to form the modern system of agency in statute law used to be existed naturally in Roman law.If the modern system of agency picks up these specialties naturally,the system of agency in common law and statute law can be integrated.The return of the concept of agency in Roman law in the system of special agent which was proposed by Cleve M.Schmitthoff is a return to the practical rationality of the modern system of agency.To look for the way of the unification of these two systems of agency of common law and statute law,which was based on roman law,is not to apply the system of agency of Roman law directly,but to do self-examination for the excessive theoretical rationality in front of the different and unlimited phenomenon in economic practice which changes everyday.