合同分类与合同效力: 总分结构中类型规范之意义初探

The Classification and Validity of Contracts A Preliminary Study of Contract-type-norms in the General versus Special Parts of Contract Law

摘要:

关于合同的约束力, 西方的理论大抵依有偿与无偿的不同而分别说明; 在我国, 理应考虑本国的历史文化, 探索更具有解释力的理论。 就我国民法的外在体系而言, 在总则层面的法律行为下, 以合同为规范单元, 区分 _“ 通则_” 与 _“ 典型合同_”, 为法律人 _“ 找法_” 提供了明确的线索; 然而在 _“ 典型合同_” 与 _“ 合同_” 之间, 发掘 _“ 有偿合同_{” “} 无偿合同_{” “} 双务合同_{” “} 单务合同_” 等不同分类对应的法规范, 本身是对 《民法典》 做体系化整理的应有内容, 同时也可提升法律人的 _“ 找法_” 能力。

Abstract:

Although the practice of contracts has a long history the history of the general rules of contracts is much shorter. Since the 1980s China_'s legal development has embarked on a pragmatic path. As regards civil law China has extensively borrowed the legal concepts and techniques of the Civil Law system but China?s civil law also reflects the independent choices of Chinese legislators based on Chinese reality. In terms of the contract law China has not adopted the highly abstract German and Japanese models based on law of obligations. Instead it has formulated its own contract law in response to the needs of its market economy. At the same time using the legislative technique of extracting common factors of the German Pandekten system the Chinese contract law consists of general provisions and sub-provisions. As regards the basis of the contract?s _“validity_” or _“binding force_”, Western legal theories tend to choose between _“will_” and _“reliance_”. In China, it is necessary to examine comparative laws and related legal theories when explaining the binding force of a contract. However, from the perspective of Chinese history and culture there are also possibilities for diverse interpretations. Therefore, in China we should take into account the social and cultural conditions and explore theories with more explanatory power. As far as the Chinese Civil Code is concerned, the validity of a contract is the result of a combination of the parties? wills and the evaluation of the law. The specific effect of a valid contract first of all depends on the agreement of the parties involved; where the consent of the parties is not clearly stated or when there is a loophole, it is necessary to consider other factors, for instance, the trading habits, the general provisions of the law. In the external system of the Chinese Civil Code, especially under both the general povisions on juridical acts in Book One and general provisions on contract in Book Three, _“contract_” is taken as the normative unit, there is a distinction between the _“general provisions_” and _“the typical contracts_” in Book Three, and this has provided clear clues for the lawyers to _“find the law_”. Moreover, between the _“abstract_” contract and specific _“typical contracts_”, there are different types of contracts such as _“onerous contract_” and _“gratuitous contract_”, _“bilateral contract_” and _“unilateral contract_” ,and _“contract to be performed at one time_” and _“long-term contract_” . Exploring legal norms corresponding to these various types of contracts consists a part of the task of systematically interpreting the Civil Code and enhances the ability of law-finding of judges and lawyers. By discovering such contract-type-norms, people may have a better understanding of different types of contracts e. g. the distinct differences between onerous contracts and gratuitous contracts in the qualification of the subjects, the weight of the responsibility, the composition of the creditor _'s right of revocation, and so on. And there is a sharp difference between bilateral contracts and unilateral contracts in terms of exception non adimpleti contractus, the reduction of the donor ?s responsibility.