论请求权二元体系的法理根据

On the Jurisprudential Basis of the Dual System of Right of Claim

以基础性请求权与救济性请求权区分为基础的民法上请求权二元体系之划分,事关我国未来民法典的制定,其法理根据之研究理当受到重视。该法理根据包括二元实体私权体系和义务与责任的区分理论。前者是指私权体系的基础权与救济权之二元划分,该体系在实体法上的真正构建,正是请求权概念出现的结果。后者是指责任作为义务之违反所致的法律后果,与义务之间存在着可否作为直接强制执行之依据的本质区别,该区别和权利体系中的基础权与救济权之二元划分正好完全契合。

The dual system of right of claim in civil law refers to the division of fundamental right of claim and remedial fight of claim. The research on jurisprudential basis of this dual system requires serious consideration since it concerns the formulation of China＇ s future Civil Code. The jurisprudential basis includes theories of dual substantive private right system and that of division between duty and liability. The former refers to the dual division between fundamental rights and remedial rights in the private rights system, whose actual construction in substantive law resulted from the emergence of concept of right of claim. And the latter holds that, as the legal consequence of breach of duty, liability is the basis of direct enforcement, which is essentially different from duty. Therefore, the difference between duty and liability is perfectly consistent with the dual division of fundamental right of claim and remedial right of claim in system of rights.