论法律行为理论中的纷争

On The Dispute in the theory of Juristic Act

文章通过制度比较与语义分析,在考查德国民法制定时的历史背景的基础上对法律行为理论中的基本问题予以澄清,文章指出:"合法性"的争议,毋宁是源自对产生民事法律行为制度的德国社会思想背景的陌生和语言习惯上的差异;而独断地认为法律行为仅为民法的部门法范畴,则是对"意志自由""、私法自治"理念的误读与滥用所致;而意志自由与物权行为之间更是存在难以消弭的张力。

Juristic act has been undertook in China,and also solicitates dispute in theory,as which occurs in all kinds of culture succession.In this article,the validity of jusistic act,other juristic act in the other branch of law,and juristic act of real right have been discussed.I argue,that the dispute on the validity of juristic act is false,the origins of which are the difference between Chinese and German and that we are not familiar with the background thinking of juristic act in Germany,and the viewpoint,that there be not juristic act in the orther branch of law,is based on the abuse of will freedom and the autonomy in civil law.I also argue that there be ineluctabily conflict between juristic act of real right and will freedom.