论债法中本土化概念对统一的债法救济体系之影响

The Impact of “Indigenous Concepts”in Obligation Law on the United Remedy System of Obligation Law

我国民法在移植的过程中,不仅有立法继受,还有学说继受,再加上在"中国特色"名义下的"本土化"概念创造,又无立法机关公布的"立法理由书",使得对现行立法中诸多制度的解读发生重大争议。这些争议不仅影响了学术研究,而且影响了司法实践。债法中的"违约责任"就是在民法继受过程中自创的本土化概念之一,自从其诞生后,就在我国法学研究和司法实践中产生了不良影响。在"瑕疵履行"已被许多大陆法系国家纳入到"债务不履行"的范畴中去的今天,我们的学理对我国《合同法》关于"瑕疵履行"与"违约责任"的关系问题仍然存在争议;对"合同解除"是否属于"违约责任"问题也存在争议。我们应该建立统一的"合同义务违反"概念,进而统一对违反合同义务的救济手段,以消除违约救济中的不协调问题。在未来的民法典中,应坚定地将合同作为债的发生原因,将"违约"作为"债务不履行"类型,将违约救济作为债务不履行的后果对待。

During the transplant of China＇s Civil Law, as there are not only legislation adaption and theory adaption, but also the creation of ＂Indigenous Concepts＂ under the name of ＂ Chinese Characteristics＂, nonetheless without ＂ legislative reasons ＂ published by legislation department, significant controversies on various regimes in current laws have appeared as a consequence. These controversies not only have impact on academic research, but also affect judicial practice. The concept of ＂liability for breach of contract＂ is one of the self- made indigenous concepts during the adoption of civil law. Since its creation, it has made unharmonious influence on legal since research and judicial practice in China. For instance, in the day when ＂ defective performance＂ has been brought into the scope of ＂obligation nonperformance＂ in many civil law countries, there still are academic debates on the relationship between ＂defective performance＂ and ＂breach liability＂ in China＇s Contract Law, and also on the question whether ＂contract rescission＂ belongs to ＂breach liability＂. We should create a united ＂contract obligation breach＂ concept and furthermore unite its remedy ways, in order to eliminate the incoordination of breach remedy. In the future civil code, contract should he the causation of obligation, ＂breach＂ should be a type of ＂obligation nonperformance＂ and breach remedy should be treated as the consequence of obligation nonperformance.