论我国未来民法典对法律行为内涵的继受

On Transformation of Connotation of Legal Act

私法自治是民法的基本精神,而其实现工具则是法律行为。大陆法系传统民法理论认为,法律行为是一种以意思表示为要素、旨在发生某种私法效果的法律事实,其本身不包含是否合法的判断。《民法通则》对其内涵进行了改造:将法律行为定性为合法行为,并在"法律行为"之前冠以"民事"二字。《民法通则》对法律行为内涵如此改造的原因有二:一是对法律行为内涵的误读,二是对该法颁布前法律行为这一概念频遭滥用现象的妥协。这种改造一方面导致法律交往的困难,另一方面造成了法律行为属性的混乱。但无须回归传统,只需参照《合同法》的规定对民事行为的外延进行统合就可以达到目的。

Private autonomy is the basic spirit of civil law, and its implementation tool is legal act. The traditional theory of civil law holds that legal act is a kind of legal fact which contains meaning expression as its main elements and aims to some civil law effects. The legal act itself does not contain the legality judge. General Rules to Civil Law transformed the connotation of legal act through considering legal act as lawful behavior, and placing the word ＂civ- il＂ before legal act. There are two reasons for General Rules to Civil Law transforming the connotation of legal act. One is misunderstanding the connotation of legal act; the other is compromise on abusing frequently the concept of legal act before the law promulgated. This transformation had a negative impact on two aspects： one is the difficulty in communication, the other is the confusion of property legal act. But there is no need to return to the tradition, just integrate the extension of the civil act referring to the provision of the Contract Law, and then we will achieve the goals.