合同法上合理性术语适用之法哲学观察

发布时间：2019-08-26 14:11

【摘要】：正一、引言 1999年颁行的合同法大量地借鉴了西方发达国家的立法经验,吸收了其较为成功的立法成果。这一方面体现在合同法中新添加的诸如履行抗辩权、根本违约及可预见损失规则等具体新制度上,另一方面体现在对西方尤其是英美国家的合同法观念的采纳上,如作为本文研究对象的合理性术语的大量采用。在适用合同法的司法实践中,使我国的法官们感到困惑的主要是与后一方面相关的规定。前一方面的规定虽然也可能使法官们感到陌生,乍一适用很不顺手,但随着时间的流逝,陌生自可变为熟悉,渐达卖油翁名言"只不过手熟罢了"之境。究其原因,主要在于这些新规定的"具体"上,具体的东西一般而言是比较容易把握的,譬如学习剑术,再难的剑招可以学会,只要有招,就可以学仿。恰成对照,后一方面的相关规定,由于事关法律理念,与生成它的各种环境因素诸如人文、历史、经济、政治等有相当密切的关系,对于生长在那里的法官这一切都是理所当然的,不言自明。而我国的法官们对于该立法观念的生成环境则是陌生的,而且也不大可能有很多人有机会去熟悉,因而要准确理解由此种观念衍生的抽象制度,相形之下就困
[Abstract]:The contract law, which was issued in 1999, has drawn the legislative experience of the western developed countries in a large amount, and has absorbed the successful legislative results. On the one hand, the new system, such as the implementation of the defense right, the fundamental default and the foreseeable loss rule, which is newly added in the contract law, on the other hand, is embodied in the adoption of the concept of the contract law in the west, especially the Anglo-American countries, As used in a large amount as a reasonable term for the subject of the present study. In the application of the judicial practice of the contract law, the judges of our country are puzzled by the relevant provisions of the latter aspect. While the provisions of the preceding paragraph could also make it strange to the judges, at first it was not in hand, but with the passage of time, the stranger could become familiar, and gradually to the "It's just a hand." of oil-on-oil. The reason, mainly in these new "specific", is that the specific thing is relatively easy to grasp, such as the learning of the sword, the difficult sword to learn, as long as there is a move, can learn to imitate. The relevant provisions of the latter aspect are, as a matter of law, a very close relationship with the various environmental factors that generate it, such as the human, historical, economic, political, and so on, and it is self-evident that the judges who have grown there are of course. The judges of our country are strange to the generation environment of the idea of the legislation, and it is not likely that many people have the opportunity to be familiar with them, so it is very difficult to understand the abstract system derived from the idea of this idea, which is in contrast to it.
【作者单位】：天津市高级人民法院法官培训中心
【分类号】：D923.6

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