典型之债与非典型之债划分刍议

On Classification of Typical Obligation and Un-typical Obligation

债是特定当事人之间请求为特定行为的具有相对性和财产性的民事法律关系,"公法之债"不在债的范围内。合同之债、无因管理之债、不当得利之债、侵权行为之债为典型之债,此四种类型以外的其他债为非典型之债。非典型之债在民商法中广泛存在,拾得遗失物中的报酬请求关系即为其中一种。相对于典型之债,非典型之债具有依附性、个别性、分散性的特性。典型之债与非典型之债的划分,为债法总则的设立提供了支持,但本身存在名实不符的弊端。以独立之债与依附之债的划分替代典型之债与非典型之债的划分,较为适宜。

The obligations in public law do not belong to the concept of ＂obligation＂ we use in common sense, which means someone under obligation in private law to perform an act. Typical obligations consist of the obligation of con- tract, obligation of management under no duty, obligation of unjust enrichment and obligation of torts. Other kinds of obligations are un-typical obligations. Untypical obligations exist in the Civil Law widely, one of which is the reward request right of lost property finders. Compared with typical obligation, un-typical obligation is dependent, individual and scattered. Though the classification of typical obligations and un-typical obligations support the existence of Gen- eral Provisions of the Obligation Law, there are problems in the classification. The classification of independent obli- gations and dependent obligations is better than the classification of typical obligations and un-typical obligations.