法律行为之理念探究

A Probe into the Phylosophy of Juristic Act

在大陆法系(尤其指德国法系)各国的民法理论和民事立法中,法律行为又称自治行为,是一个极其抽象却又十分重要的法学概念。它既指以发生私法上效果的意思表示为要素的一种法律事实,又同时具有法律规范的品格,而这一点总是被法学界所忽视。作为民法学最为重要的两个组成部分,法律行为与私法自治理念互为表里,前者是外壳,后者则是内核。私法自治原则的贯彻和实践离不开法律行为,同样,法律行为的设立也需要私法自治为其保驾护航。

As far as the legal theory and legislation for civil affairs in the civil law system are concerned, juristic act, or act of self-government, is a very abstract yet important concept of jurisprudence, which is not only a legal action but also a character of legal norm, even though it is always neglected by jurisprudents. Juristic act and privatautonomie, the two major elements of civil law science, are interdependent and support each other, the former of which is regarded as the shell and the latter the kernel. The implement of privatautonomie needs to rely on legal act as its instrument, and juristic act should also be established according to the principle of privatautonomie.