信赖的概念廊清与规范再造

The Concept Clarification and Norm Reconstruction of Reliance

民法上的信赖源自于信任,后者的存在具有普遍性。信任意味着,人对行为作出决定时总是揣摩着其他可能性,并作出冒着某种风险的决定,其道德性分类可为信赖的普遍化提供解释指南。在民法上,道德信任意味着诚信责任,法律对道德信任的保护构成了信赖的抽象语境,信赖保护由此与私法自治获得统一。普遍信任则要求保护消极信赖和积极信赖:前者是对他人为诚信行为的信赖,后者则为对他人权属状况、事实状态真实性的信赖。为促进人际信任,法律必须保护民事主体的声誉,名誉权为其典型,荣誉、信用则属于名誉的组成部分。

Reliance in civil law comes from trust which is universal.Trust means that people always consider other possibilities when making decisions about behavior,and make decisions taking certain risks.The moral classification of trust can provide explanatory guidelines for the universalization of reliance in civil law.In civil law,moral trust means the responsibility of good faith,and the protection of moral trust by law constitutes the abstract context of reliance,which is unified with the autonomy of private law.Universal trust requires the protection of passive reliance and positive reliance:the former is trust in the honest behavior of others,and the latter is trust in the authenticity of others human rights and facts.In order to promote interpersonal trust,the law must protect the reputation of the civil subject,the right of reputation is its typical.Honor as well as credit are components of the reputation.