《德国民法典》中的履行障碍法：过去与未来

Irregularities of Performance in the German Civil Code: Past and Future

履行障碍法是各国合同法的核心内容。尽管1900年《德国民法典》未明确规定不履行概念,但从它确立履行迟延、不能履行的历史背景与相关法律文本的具体规定看,在这两种违约形态的背后存在统一的不履行概念,而依据不履行概念解释《德国民法典》第275条等,可以将积极侵害债权等纳入到既存法律规则的调整范畴。尽管2002年的债法改革受错误学说的影响,将义务违反而非不履行置于履行障碍法的核心,然而对于履行障碍法的解释,仍应考虑其历史基础并虚心学习受其影响但有独立发展的别国有益经验。

Irregularities of performance is the core content in different countries＇ contract law. Although in 1900 the German Civil Code did not clearly define the concept of non-performance, it provided the historical background for the delay in performance and the impossibility of performance as well as related legal texts. Therefore, the concept of non-performance actually existed behind the concepts of delay in performance and impossibility of performance. According to the concept of non- performance, the Article 275 in the German Civil Code and other existed regulations could adjust positive infringement of contracts. Although the German reform of obligation law in 2002 regarded the breach of duty, rather than non-performance as the core of irregularities of performance, the explanation of irregularities of performance should consider its historical basis and learn from other countries which are influenced by Germany but have their own development.