Earticle

초록

영어

The release of debt is traditionally deemed as a contract since its origin from Roman law. A “unilateral juristic act” theory came out in 20th centuries in some east-Asian countries, which was developed based on the theory on the abandonment of rights; unreasonably, the “unilateral juristic act” theory does not take the interests and the will of the debtor into consideration. It is therefore held by the author that the contract theory is more solid than the “unilateral juristic act” theory, as the contract theory has sound historical origin, well reflects the characteristic of the relation of obligation, and is in line with the idea of private autonomy.

중국어

债务免除之性质, 自罗马法以来一直采取契约说。但自二十世纪以来, 东亚一些国家改采单方行为说。单方行为说以权利可得抛弃为出发点, 其结果必然是不考虑债务人的利益和意志, 殊为不妥。而契约说不仅有其历史根源, 而且更能契合债务关系的特质, 更能贯彻私法自治的理念, 教单方行为说更胜一筹。

목차

Ⅰ. 罗马法上的免除
 Ⅱ. 免除之立法例
 Ⅲ. 免除的性质之争
 Ⅳ. 为契约说辩护
 ≪ 参考文献≫

키워드

중국 중국법 채무면제 단독행위 쌍방행위 中国 China Chinese law release of debt unilateral juristic act bilateral juristic act 中国法 债务免除 单方行为 双方行为

저자

• 张谷 [ 장곡 | 浙江大学光华法学院教授、法学博士 ]

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