论罗马法债之概念的权利化改造

Research on the Rightized Reconstruction of Conception of Obligation in Roman Law

伴随着罗马法后期诉讼制度的转变和随后的基督教的兴起,权利概念最终在欧洲中世纪末期形成,并在个人主义思潮的推动下开始了对罗马法概念体系的权利化改造。罗马法上的分配之债和救济之债,遵循着不同的理路和逻辑,脱离了罗马法上的无体物和诉因的地位,被改造成现代法上独立于物权和诉权的债权概念。这一权利化改造的历史,对于我们深刻理解今日时兴之债权乃至权利概念的思想背景和技术内涵、债权与物权以及实体法与程序法的区分关系,从而正确把握现代法的精神,具有非常重要的意义。

With the transformation of the late Roman litigation system and the following rising of the Christian religion,the concept of right finally came into being at the end of the Middle Ages when the rightized reconstruction of the Roman law conception system had commenced under the impetus of the stream of individualism.The obligation of distribution and that of relief in Roman law,which obeyed various orderliness and logic,had separated themselves from the status of res incorporales and the cause of action,and had been reconstructed into the obligatory right concept which has been independent from property rights and rights of action in modern laws.The history of the rightized reconstruction of conception of obligation in roman law is of great significance for us to understand thoroughly the ideological background and technical connotation of present conception of obligatory right and even of right,as well as the distinction between obligatory rights and property rights and between Substantive Law and procedural law,and thus to grasp the essence of modern laws correctly.