论买卖合同标的物规则的形成理念--以人格尊严和无体物为分析视角  

The Concept of the Formation of the Rules on Subject Matter of Sales Contracts-An Analysis from the Perspectives of Human Dignity and Incorporeal Things

作　　者：费安玲 Fei Anling

机构地区：[1]中国政法大学比较法学研究院

出　　处：《环球法律评论》2022年第3期115-130,共16页Global Law Review

摘　　要：任何法律规则均受理念之引导,买卖合同标的物规则亦概莫能外。买卖合同标的物之本质,并非仅涉及对物的认识,尚需要从历史与现实、物与自然人的关系加以认识。人格尊严理念必须深植固本于买卖标的物规则之中,买卖合同标的物仅限于物之范围内,并时刻矫正社会现实中有悖于人格尊严理念的买卖标的物之异化现象。同为转让,《民法典》有关买卖合同系“转让标的物所有权”的规则与散现于同一部法典其他条款中的无体物转让规则之间,存在明显缝隙,未能体现出现代社会经济发展之现实与需求,且难以体现法典之体系化特质,此系买卖合同标的物规则缺乏有体物与无体物兼存理念所致。故我国《民法典》在其未来完善中应当强化立法对“法不禁止即自由”的买卖合同标的物合意的认可,将无体物转让纳入买卖合同标的物规则宏观体系中,至少应当有明确的立法指引,同时根据其各自特性在具体规则上做出差异性的系统考量。The reflections on the concept of the rules on the subject matter of sales contract originate from the deep observation and analysis of the phenomenon that the natural person becomes the subject matter of sales contracts and the obvious gap established by the Chinese Civil Code between the rules of sales contracts that centers on the“transfer of the ownership of subject matter”and those related to the transfer of incorporeal things.To understand the rules of subject matter regarding sales contracts in the Chinese Civil Code,we should explore not only the concept of“things”per se,but also the relationships between history and reality,and between things and natural persons.This paper argues that,firstly,simple and clear concepts are easily ignored by legislators who are usually influenced by technical legislative tools.It has been a long journey for the concept of human dignity to develop from a concept in Roman law to a concept in the modern law system.In the 21 st century,it is imperative that the concept of human dignity be deeply entrenched in the rules on the subject matters of transactions,specifically limit the subject matter of sales contracts within the scope of“things”according to the established definition,and rectify in real-life transactions the alienations of subject matters in sales contracts that run counter to the concept of human dignity in Chinese law.The core of practicing this concept is to carry out legislative coordination between civil law and criminal law as well as between the internal rules of civil and criminal laws in accordance with legislative guidelines and basic principles,so as to limit subject matters to within the scope of things and resolutely put an end to the practice of treating natural persons as subject matters of sales contracts.This is because the terms and rules in the legislation have functions not only as codes of conduct but also as a method of national education.Secondly,although the rules of transfer in civil law cover the transfer of both corporeal and

关 键 词：买卖合同 标的物规则 人格尊严理念 无体物 

分 类 号：D923.6[政治法律—民商法学]