欧洲法律传统和欧洲共同买卖法草案

The European Legal Tradition and the CESL Draft

2009年制定并公布的《欧洲示范民法典草案》是促成《欧洲共同买卖法草案》产生的前提和基础。尽管《欧洲示范民法典草案》公布后引发学术界的广泛批评,欧洲权威机构也同样对此持谨慎态度,然而,在欧盟范围内为协调各成员国传统私法的努力并未中止,《欧洲共同买卖法草案》即是明证。《欧洲共同买卖法草案》旨在突破欧洲跨境经济活动现有瓶颈,减少交易成本,充分开发内部市场潜力,为买卖合同领域的当事人提供受统一的合同法规则约束的可能性。本文首先介绍《欧洲示范民法典草案》,它为《欧洲共同买卖法草案》奠定了重要的基础,其次分析《欧洲共同买卖法草案》的产生背景并阐述其目标、范围及内容,最后对《欧洲共同买卖法草案》规则提案与欧洲法律传统之间的关系进行举例说明并作一般性评论。

The preliminary step leading to the CESL draft was the writing and publication in the year 2009 of the Draft Common Frame of Reference of the European Private Law. Although a strong criticism was addressed to the DCFR from many directions and mainly by the academic world, European Authorities also expressed a more cautious attitude during the drafting of the Project, the efforts for approaching and harmonizing some parts of patrimonial private law of EU Member States never stop, CESL represents the one of most important efforts that were made. CESL aims at overcoming the bottlenecks to cross-border economic activity, reducing the costs of transactions, fully exploiting the potential of the internal market and allowing the parties to have the possibility to agree that their contracts would be governed by a single uniform set of contract law rules with the same meaning and interpretation in all Member States. This article firstly introduces the DCFR, which provides important bases for the road towards the CESL draft, secondly describes the backgrounds of the birth of CESL draft and its objectives, scopes and contents, connections between the CESL proposal for a R and finally gives some general remarks and concrete examples of egulation and the European Legal Tradition.