一元论与二元论:民法错误规制的辩证分析

One-layer Mistake Institute and Two-layer Mistake Institute:A Dialectical Analysis on the Mistake Institute of China's Civil Law

作为我国民法学上的通论,民法上的二元错误论自2005年以来遭受来自一元错误论的批判和解构。一元错误论在解构二元错误论的同时,完成了知识移植和知识体系的建构。然而,它对二元错误论的解构并不成功:作为其基础的错误概念难以成立;其制度缺陷令其较之二元错误论难称优越;其驳论与立论存在明显的不足。坚持传统民法上的二元错误论应是我国民法的不二之选,但此种坚持应以扩张错误概念和软化动机错误不可撤销之僵化规则体系为前提。

As a general principle of the civil laws of the People＇ s Republic of China, the two - layer mis-take institute has been confronted with criticism and deconstruction from the one -layer mistake institute since2005. And at the same time the one - layer mistake institute has completed its transplant of knowledge and con-struction of knowledge system. However, the deconstruction was not successful in that the fundamental conceptsthe one -layer mistake institute has not been fixed, it has certain institutional defects compared with the two -layer mistake institute, and its paradox and argumentation are obviously inadequate. It is a consistent idealchoice for China＇ s civil laws to insist on the two - layer mistake institute, but it should take as the premise therigid system in which expanding mistake concept and softening errors of motives should remain irrevocable.