我国合同拘束力理论的重构  

Restructuring of the Theory on the Binding Effect of a Contract

作　　者：解亘[1] 

机构地区：[1]南京大学法学院

出　　处：《法学研究》2011年第2期70-84,共15页Chinese Journal of Law

基　　金：独立行政法人日本学术振兴会(JSPS)外国人招聘研究者项目"债权法的改正及其对情报交易的影响"(ID:No.S-09130)的研究成果

摘　　要：围绕合同债权的拘束力问题,存在着债权一债务构成与合同构成两种不同的理论模式。我国合同法在总体上选择了合同构成。但由于理论上的准备不足,无论立法者还是解释者都没有清晰地意识到上述两种构成的存在和意义,而是误用了早已扭曲变形的严格责任体系和过错责任体系作为理论工具,导致合同法在立法和解释上都夹杂了很多债权—债务构成的成分,不仅造成了严重的体系矛盾,而且在一定范围内引发了法律效果的偏差。这些矛盾和偏差需要通过用纯粹的合同构成对现行的合同拘束力理论进行重构方能化解和矫正。There are two theoretical frameworks regarding to the issue of the binding effect of a contract, namely the framework of obligatory right and the framework of contractual right. These two frameworks are very different and not compatible. Due to the facts that Chinese contract law came into being without a civil code and that international current had influences on its formation, the general structure of Chinese contract law is built on the framework of contractual right. However, due to the insufficiency in the theoretical preparation, both the legislators as well as the legal interpreters are not fully aware of the reasoning and significance behind the above two frameworks. Therefore, they misinterpret the system of strict liability and use it as a foundation of the framework of contractual right. This results in elements of the framework of obligatory right being confused with the elements of the framework of contractual right, as found in both the enactment and interpretation of the law. Confusions can be seen in the double attributive reasons of responsibility, the assessment of damages, breaching of a contract due to a third party, the relationship between the termination of a contract and the assuming of risk, and finally, the positions of the institutes of force rnajeur and substantial change of circumstances. Such confusions have led not only to contradictions in the legal structure of Chinese contract law but also to differences in the legal effect of some contracts. These confusions and deviations concerning to these issues can only be solved and corrected by restructuring the theory on the binding effect of a contract with the framework of contractual right.

关 键 词：合同拘束力 债权-债务构成 合同构成 

分 类 号：D913[政治法律—民商法学]