论中国《合同法》的罗马法基础——兼论以罗马法作为未来亚洲模范合同法基础的可能性

On Roman Law Foundations of China's Contract Law:Concurrently on the Possibilities of Roman Law as the Foundation of the Model Contract Law of Asia

中日韩三国同属于德国法族,通过德国的中介继受了罗马合同法的8个规定,分别关涉买卖与互易的区分、定金规则、所有权移转时间与价金交付时间挂钩、无偿保管人承担标的物灭失责任的条件、债权人对诈害行为的撤销权、债的履行中的诚信原则、混同导致债消灭、不可抗力导致免责。它们构成三国法律中共同的罗马法基础。在建立东北亚共同体的框架内,产生了制定《亚洲合同法原则》的动议,上述8个规定可作为此等原则的内容。

Several regulations of Roman contract law have been inherited by media of German law since China, Japan and South Korea all belong to the family of German law, including eight specific regulations on distinction of sales and barter, earnest money, synchronization of ownership transfer and payment delivery, conditions for the voluntary custodian to assume liabilities for loss of goods, creditor＇ s right to revoke fraudu- lent conducts, integrity principle applied in performance of debt, debt elimination upon merge, liability ex- emption caused three countries. by force majeure. In the framework These regulations have constituted the Roman law foundations in the above of Northeast Asian Community, the motion to formulate Principles of Asian Contract Law has been uttered, and the above eight regulations can be integrated into these Principles.