中国债编体系构建中若干基础关系的协调——从法国重构债法体系的经验观察

Coordination Several Primary Relations in the Construction of China's Law of Obligations

中国编纂民法典需要在合同法、侵权责任法已自成体系的现状下重构债法规范体系,协调若干基础关系,包括将法律行为还是合同作为规范的中心,债法总则应否与合同法总则并存,如何处理不同原因所生之债的特殊规范与共同规范的体例关系,如何安置无因管理与不当得利等债的渊源等问题。这也是以法国民法为代表的欧陆法系在重构债法体系时所面临的难题。2016年2月,法国债法改革重构了法国民法典的债法体例,为中国立法提供了参考范例。法国债法的新体系以合同规则为中心,其规范准用于其他法律行为;债法一般性规则从合同规范体系中分离出来,设立债法通则;债法体系按照"债之渊源"、"债之通则"、"债之证明"以及特别合同的顺序展开;"债之渊源"囊括合同法总则、侵权责任法以及其他债的渊源(无因管理、非债清偿与狭义不当得利三种传统的"准合同")规则。这一立法经验凸显了债的渊源在债法体系构建中的主导地位以及合同中心主义。

Based on the present self-contained and relatively well-developed system of contract law and tort law, the codification of China＇ s Civil Code requires the reconstruction of law of obligations and the coordination between some primary relations, such as the relationship between legal acts and contract, and answers such questions as what should be the core of the civil law, should the general principles of the law of obligations coexist with the general principles of contract law, how to manage the relations between general rules and special rules of obligations arising from different causes, and what is the proper position of the ＂minority＂ sources of obligations, such as negotiorum gestio and un- just enrichment. The French civil law, as the representative of continental legal system, has also en- countered these questions while reconstructing its own law of obligations. In February 2016, France reconstructed the system of law of obligations in the French Civil Code, thus has given clear answers to the above questions and provided Chinese legislature with useful experiences in this field. The core of the French law of obligations are contractual rules, which can be applied to other legal acts. The general rules of obligations are separated from the system of contractual rules and become general principles of obligations. The structure of the law of obligation unfolds itself in the following order： ＂Sources of Obligations＂, ＂General Principles of Obligations＂, ＂Prove of Obligations＂ and special contracts. ＂Sources of Obligations＂ include general principles of contract law, tort law and other sources of obligations （the three traditional quasi-contracts： negotiorum gestio, condictio indebiti and unjust enrichment in a narrow sense）. The French experiences highlight the importance of sources of obligations in the structure of the law of obligations and the centralism of contract.