民法典合同编的立法取向与体系开放性

On the Legislative Orientation and System Openness of the Contract Law Part of the Chinese Civil Code

民法典合同编迄今已公布三次征求意见稿,草案之间一脉相承,不断改进。较之现行合同法,合同编草案内容上更为充实丰富,体系上也更加完备,值得称道。但同时也应当注重对合同编进一步进行实用主义的设计与改造,处理好合同编与民法总则之间的逻辑关系,同时尽量减少合同编中的准用性规范,将鼓励交易原则、合同诚信原则和合同自由原则等充实进合同编,并重申合同效力规则,以维护合同法的完整性和有效性;在未规定债总的情况下,应确立“合同中心主义”的债法模式,在合同编中纳入准合同规则、债的种类规则和以物抵债规则等内容,以发挥合同编替代债总的功能。面向未来,合同编更需要搭建一个开放的体系来储存更多的规范能量,性质上强调市场交易基本法的定位,规范上强调规则、原则和标准的有机融合,类型上强调有名合同的扩容,从而保持民法典合同编的体系开放性。

Currently,the Third Exposure Draft of the Contract Law Part of the Chinese Civil Code has been published for comments.This draft and the previous two drafts have all come down in one continuous line,with each of them being an improvement of the previous one.Compared with the current contract law,the Contract Law Part of the Civil Code is more substantial and richer in content and more complete in system,but still has room for improvement,especially for pragmatic design and reform.In the drafting the Contract Law Part,attention should be paid to the logical relationship between the book and the General Provisions of the Civil Law.To this end,China should first reduce the referential norms in and incorporate such principles as encouragement of transaction,contractual integrity and the freedom of contract into the Part,and restate the rules of contract validity,so as to uphold the integrity and effectiveness of the contract law;next,China should establish a“contractual centralist”model of obligation law,incorporate such rules as those relating to quasi-contracts,the types of debts and debt-for-equity,etc.into the Part,so as to enable it to function as the substitute of the General Provisions of the Obligation Law;after being incorporated into the Civil Code,the Part needs to build an open system to store more normative energy.In order to maintain its openness,such a system should emphasize the positioning of the basic law of market transactions in terms of its nature,the organic integration of rules,principles and standards in terms of its norms,and the expansion of typical contracts in terms of its type.