【作者】 杨代雄；

【导师】 李建华；

【作者基本信息】 吉林大学 ， 民商法学， 2007， 博士

【摘要】 在民法体系演变史上,德国古典私权一般理论扮演至关重要的角色,正因为它的出现,大陆法系民法才在传统的法学阶梯式体系之外形成五编式的潘得克吞式体系。德国古典私权一般理论的思想根源在于近代德国自然权利义务理论,它为德国法学开启了新的视域,自此,德国学者开始从权利义务的视角思考法律问题。内特布拉德、达耶斯等人把自然权利义务理论及其追求抽象性与体系化的精神移植到民法学中。受哥廷根学派方法论革新运动的影响,18世纪末19世纪初德国民法学者开始从民法学自身的视角探索私权一般问题,形成了包括私权主体、客体、变动原因、救济、性质与分类理论在内的私权一般理论雏形。经潘得克吞法学派数十年的学术耕耘,尤其在得到法律关系理论充实之后,古典私权一般理论到19世纪晚期发展到巅峰。德国古典私权一般理论是潘得克吞式民法体系的学理基础,它表征了体系化的权利思维:各种权利借助于抽象概念被组织成一个逻辑严密的权利类型体系,同时,权利本身也具有内在逻辑结构(主体、客体、变动原因、救济)。权利的内在结构与权利类型体系分别成为潘得克吞式民法体系总则与分则的逻辑基础。民法体系植根于民法学理传统,是精神史的产物而非立法者的任意创设。长期以来,我国民法教科书都以潘得克吞式体系为模板安排结构,在这样的民法学理传统基础上构造民法典体系不可能对潘得克吞式体系有太大偏离,当然,应根据当代民法理论发展趋势对其作必要改进。我国民法典应设置总则,分则体系的构造应以权利类型体系为基础,综合考虑逻辑、审美与实用性等因素。更多还原

【Abstract】 German classical general theory of private rights played a very important role in the evolutionary history of civil law system. Owing to the emergence of it, the continental civil law formed a new model of system beside the traditional institutional system model which is composed of ius personarum, ius rerum and ius actionum. People usually call this new model of system Pandecten system, including five part: general part （AllgemeinerTeil）, law of real right（Sachenrecht）, law of obligations （Recht der Schuldverh（a|¨）ltnisse）, family law（Familienrecht）, succession law （Erbrecht）. Without a knowledge of German classical general theory of private rights, it is impossible for us to find out exactly what cause the Pandecten system to be formed as well as to understand deeply its internal mechanism and principle. As a result, we cannot evaluate it impartially and decide rationally to adopt or discard it, or plan how to improve it. In this dissertation, the author does a thoroughgoing research on the development course and framework of German classical general theory of private rights, and seeks to understand its influence on the Pandecten system, so as to disclose what cause the Pandecten system to come into being and its internal mechanism and principle. Such research provides an important historical reference for the construction of our country’s civil code system. The dissertation includes five chapters.Chapter one probes into the ideological roots of German classical general theory of private rights. German classical general theory of private rights was not bred by the tradition of civil law science itself. Its ideological roots lay in German theory of natural rights and obligations in modern time （Neuzeit）, which sprang up in the late 17^th century, and arrived the summit in the middle of 18^th century. With the help of so-called scientific methods, Samuel Pufendorf and Christian Wolff, who were the main representatives of German naturalists, deduced from several basic ethical principles a logically well-knitted theory system of natural rights and obligations, which can interpret the fundamental relationship between individuals as well as that between individual and state. The logical fulcrum of Pufendorf’s theory of natural rights and obligations was“moral entity”, i.e. moral person, which was viewed as subject of the ethical world. Moral person had intellect and will, could decide rationally and made free choice. Therefore, he could and should be tempered by law, guided by right, bound by obligation. In contrast, all other entities in the world had neither intellect nor will, so they could only be viewed as object. In essence, right and obligation were moral qualities. Right shaped a sphere of free will, which may be restricted by obligation in some circumstances. Obligation was divided into congenital obligation and adventitious obligation. The former included the duty of all men toward God, the obligation of all men toward their fellow men, and the duty of man toward himself. Right mainly included liberty, right of self-defense, right of necessity, ownership, right over the property of others, power of husband over his wife, and paternal power. Congenital obligation originated from human nature and fundamental principles of natural law. Adventitious obligation and most rights derived from free will. Christian Wolff based his theory of natural rights and obligations on the concept of perfection （Vollkommenheit） and the ultimate presumption“human has such a nature that he is inclined to do good and to reject evil”. In Wolff’s opinion, natural law imposed a fundamental obligation on human, according to which he should do good and not do evil. To fulfill natural obligation, the obligor needed certain freedom of act. All kinds of natural right could be deduced from this proposition. Among Wolff’s academic achievements, there are two more outstanding. First, he interpreted society, a kind of subject of right and obligation, as contractual relationship. Second, he put forward the concept of declaration of will when he discussed promise that was viewed as ground of right and obligation. Pufendorf and Wolff’s profound inquiries into the essence and justness of natural right and obligation opened up a new visual field for German legal science as well as provided new topics and analysis means for it. Hereafter, German jurist gradually learnt to meditate legal problems from the standpoint of right and obligation. A seed of general theory of private rights had been planted into the spiritual earth of German natural law science.Chapter two investigates the progress of preliminary forming of German classical general theory of private rights. The first question to be inquired into is how German theory of natural rights and obligations in modern time merged into civil law science. Compared with English and French natural law science in modern time, German natural law science was more concerned with private legal problem. As a result, German natural law idea especially the theory of natural rights and obligations exert a much profounder influence on civil law science. In the middle of 18^th century, students of Wolff such as Daniel Nettelbladt and Joachim Georg Darjes transplanted the theory of natural rights and obligations into German civil law science. Hence, natural law science’s spirit of pursuing abstraction and systematization was passed on to civil jurists. At the same time, some important concepts, values and ideas were introduced into civil law science, such as the concept of moral person, right, obligation, declaration of will, action, the idea of free will, equality, and the doctrine of liability for wrongs, etc. In the second half of 18^th century, the school of G?ttingen （G（o|¨）ttinger Schule） that was represented by Pütter and Gustav Hugo initiated a movement to innovate the methodology of jurisprudence. They criticized natural law science, and advocated making distinctions among legal science, ethics and philosophy. In this way, the subordination of civil law science to natural law science was removed. However, civil law science did not stop its pace towards abstraction and systematization. Merely the route was changed: induction replaced deduction, and experiential materials of positive private law superseded transcendental ethical basic principles. Under the influence of this movement, in the late 18^th century and the early 19^th century, many civilians attempted to inquire into general problems of private rights from the standpoint of civil law science itself, such as Johann Wilhelm von Tevenar, Christoph Christian von Dabelow, Theodor Anton Heinrich Schmalz, Anton Friedrich Justus Thibaut, Gottlieb Hufeland, etc. Among these civilians, Thibaut and Schmalz were more preeminent. Their research on general problems of private rights resulted in an embryonic form of classical general theory of private rights, which was composed of the theory of subjects of private rights, objects of private rights, causes of private rights change （（A|¨）nderung）, remedies of private rights, the essence and classification of private rights. Chapter three investigates the development of German classical general theory of private rights in the times of Pandecten-science. In Germany, Pandecten-science sprang up in the 19^th century under the influence of historical school of law. Early Pandectists such as Arnold Heise and Ferdinand Mackeldey dedicated themselves to combing, summing up and arranging materials of pure Roman private law as well as previous doctrines. They did these within the realm of civil law science, and based them on civil law science’s intrinsic methods. Therefore, their general theories of private rights were notably improved in respect of academic autonomy and positiveness. Heise explicitly used the terminology Rechtsgesch（a|¨）fte to name juristic act, and emphasized that declaration of will was kernel of it. In this way, the terminology and meaning of juristic act in modern sense came to be united. Mackeldey put forward the concept of Verm?genrecht, and constructed a perfect system of absolute rights and relative rights. In the flourishing period of Pandecten-science, theory of legal relationships came into being in Germany. In essence, it was a particular form of general theory of private rights, because it also focused on rights. Savigny’s theory of legal relationships, which was viewed by himself as organic, improved general theory of private rights in many aspects, such as making distinctions among capacity for rights and capacity for juristic act, putting forward the fiction theory of juristic person, interpreting the relationship between right of action and substantive right consciously, advancing a systematized general theory of civil fact of law. There were also some outstanding achievements in Puchta’s theory of legal relationships. For instance, he defined the relation between legal relationship, right, and capacity （Befugniss）; clearly distinguished subject of act from subject of right. Owing to the long-term academic efforts of Pandectists, especially after being enriched and expanded by theory of legal relationships, German classical general theory of private rights reached the summit in the late 19^th century. The second book of Bernhard Windscheid’s Lehbuch des Pandektenrechts contained all important general problems of private rights, including the concept and essence of private right, classification of private rights, subjects of private rights, objects of private rights, change （（A|¨）nderung） of private rights, exercises and remedies of private rights, etc, which constituted the final shape of German general theory of private rights in the times of Pandecten-science.Chapter four focuses on the influence that German classical general theory of private rights exerted on the construction of civil law system. In the continental history of private law before the emergence of general theory of private rights, the predominant civil law system model was institutional system. It originated from Roman jurist Gaius’Institutes, which divided civil law into ius personarum, ius rerum and ius actionum. Justinian’s Institutes, which was a part of his Corpus Juris, adopted this system model. It was followed by Medieval jurists, apart from a little improvement. The system of Code Napoléon, which was composed of ius personarum（book one） and ius rerum（book two and book three）, was similar to Justinian’s Institutes, except for ius actionum being excluded. Institutional system represented an ordinary and intuitive systematic thinking mode. The jurisprudence of ancient Rome was geared to the needs of practice. Responsum and interpreting legal rules in order to resolve practical issues took up most vigor of Roman jurists. Within the limited time remained for systematic thinking, they could only arrange matters that they had experienced in legal practices in a simple way. Legal materials concerned with status were associated under the title ius personarum; those concerned with property were associated under the title ius rerum; those concerned with ways of settling disputes were associated under the title ius actionum. In contrast, German classical general theory of private rights represented a systematic thinking mode that focused on rights. German civilians were used to analyzing civil law issues from the standpoint of right. With the help of concepts that were different in degree of abstraction, they constructed a logically well-knitted system of private rights. On the other hand, right itself had internal logical structure （subject + object + cause of changing + remedy）. The internal logical structure of right acted as logical foundation of general part of Pandecten system. The classification of rights acted as logical foundation of specific parts of Pandecten system: law of real right regulated real right, law of obligations regulated obligatory right, family law regulated right of kinship, succession law regulated right of succession. Evidently, German classical general theory of private rights was the theoretical foundation of Pandecten system.Chapter five attempts to inquiry into the construction of our country’s civil code in the visual field of the evolutionary history of civil law system. The history manifests that civil law system rooted in tradition of civil law science. It is product of ideological history rather than pure creation of willful legislators. The reason for which Justinian applied the scheme of Gaius’ Institutes to his own Institutes was that this scheme had dominated ancient Roman’s jurisprudence for several centuries. Code Napoléon followed this scheme because it had became an element of the tradition of French civil law science. Similarly, the reason for which BGB adopted Pandecten system was that in the whole 19^th century it was very prevalent in German civil law textbooks. Without strong impulsive force from the outside or violent break in the whole ideological history, it is impossible for civil law system to change suddenly. In the light of genealogy of knowledge, there is a close historical connection between our country’s tradition of civil law science and German civil law theory. For a quite long time, our country’s civil law textbooks have always been organized according to the model of Pandecten system that originate from Germany. Pandecten scheme has become the thinking mode of our country’s civilians, and, in this way, it has become an element of the tradition of our country’s civil law science. The civil code system constructed on the basis of such tradition of civil law science can only model itself on Pandecten system. It is impossible for us to deviate entirely from Pandecten system. Of course, we can improve it in some aspects according to contemporary tendencies of civil law theory, civil legislation and civil judicial practice. Our country’s civil code should contain general part, which can ensure the openness adaptability of civil law. The general part of country’s civil code should regulate subjects of civil rights, objects of civil rights, remedies of civil rights, prescription, time period and date. Beside these general norms of private rights, the general part should also include basic principles of civil law and rules of the interpretation of civil law. The construction of specific parts of our country’s civil code should be based upon the classification of private rights. Considering logic, beauty and function comprehensively, specific parts of our country’s civil code should include seven books: rights of personality, family law, law of real rights, general provisions of obligation law, law of contract, noncontractual obligation, and succession law.更多还原