连带债务:类型与概念之间

On the Solidary Obligation:between Type and Concept

"连带债务"是抽象法律思维的产物。在罗马法只存在"连带债务"的各具体情形。后世学者将之类型化为共同连带和单纯连带。前者主要基于法律行为产生,是单数之债,后者主要基于法律规定产生,是复数之债,两者适用迥然不同的法律效力规则。德国普通法时代,类型化模式的合理性遭到质疑。《德国民法典》将共同连带和单纯连带合并,统一冠之以"连带债务"概念,并配置统一法律效力规则,德国法的概念化模式由此确立。概念化模式因过度抽象而丧失了作为法律规则的意义,且脱离了"事物本质",已逐渐被德国学者抛弃。我国民法典的编纂应依循罗马法上的类型化模式,针对连带债务的不同类型配置不同的法律效力规则。

The concept of solidary obligation is a product of abstract le only the specific types of solidary obligation, which were disintegrated gal thinking. In Roman law there were into contractual solidary obligation and statutory solidary obligation by German scholars. The former was considered to be singular obligation while later was plural. The rules of legal effect under these two categories are totally different. In German common law, the rationality of this model was gradually questioned. The German Civil Code （BGB） has created the con- cept of solidary obligation and provided that the same rules of legal effects apply to all types of the solidary ob- ligation. However, because of the excessive abstraction of this conceptual model in German law and its contrary to the essence of things, the German scholars have abandoned it and proposed the model which existed in Ro- man law. China Civil Code should follow the model in Roman law, providing the different rules according to the different types of solidary obligation.