中国民法典上典型合同风险负担规则研究

Study on the Risk Burden Rules of Typical Contracts in Chinese Civil Code

我国《民法典各分编草案》第二编"合同"第二分编"典型合同"对主要典型合同中风险负担问题做了或详或略的规定。相较于《合同法》分则,这些规定有所发展与突破,表明立法者在典型合同的风险负担问题上的锐意进取。不过,这方面的规定仍存在一些问题。如《合同法》在风险负担规则方面本来存在着一些缺漏,但《民法典各分编草案》未能在吸纳司法实践经验的基础上加以改进。再如该草案主要规定了买卖合同的风险负担规则,对绝大多数典型合同并没有专门规定风险负担规则。草案应根据具体情况,对买卖合同之外其他重要典型合同中的风险负担加以规定,这不仅与中国民法典的"法典"地位相称,而且也是圆满规制中国市民社会生活关系的需要。

"Typical contract", the second part of "Contract" in the draft of civil code, has made provisions on the risk burden in the major typical contracts. Compared with the specific provisions of the Contract Law, these provisions have some development and breakthrough, indicating that legislators are determined to make progress on the risk burden of typical contracts. However, there are still some problems in this regard. For example, there are some deficiencies in the rules of risk burden in the contract law, but the draft of the civil code has not been improved on the basis of absorbing judicial practice experience. As another example, the draft mainly stipulates the risk burden rules of the sales contract, and does not specifically stipulate the risk burden rules for the vast majority of typical contracts. According to the specific situation, the draft should stipulate the risk burden of other important typical contracts besides the sales contract, which is not only commensurate with the status of "code", but also the need to successfully regulate the life relationship of China’s civil society.