【作者】 王茂祺；

【导师】 余能斌；

【作者基本信息】 武汉大学 ， 民商法， 2005， 博士

【摘要】 所谓给付障碍(Leistungsstoerungen)是指债务人不依债之本质履行债法上的义务。其对于违约责任来说有着十分重要的意义,因为对于给付障碍的处理不同会导致违约责任的承担方式以及构成要件的不同。现在世界上各国的立法对于这个问题主要存在着两种不同的立法例,一种是二元结构立法,一种是一元结构立法。采取二元结构立法一般是大陆法的一些国家,而在英美法国家以及一些国际条约中则采取的是一元结构立法。 二元给付障碍体系的特征在于将物之瑕疵担保责任外化于一般给付障碍体系之外,形成一种不同于一般违约责任的合同责任。这种做法可以追溯到罗马法,并借助着法国法,德国法的影响力传播到了现今主要的大陆法国家和地区的立法之中。就连2002年改革后的英国法也吸收了这种做法的合理成份。 罗马法开创了给付障碍二元结构体系的先河。这种创造性成就的起点就是对于消费者,承租人等特殊对象的特殊关怀。特别关怀的手段就是对于这些日常生活中最常见的交易制定特殊的规则,为消费者,承租人等特殊对象提供更多的救济方式,同时在责任的要件上给予适当的放宽。罗马法中找不到英国法中“买者自慎”的观念,在衡量促进经济发展与维护社会公平的价值冲突的时候罗马法为大陆法国家开创了一个很好的先例,可以说这种价值选择直到现代也没有过时。 罗马法的这种特征在法国法中得到了延续,可以说法国法比较忠实地继承了罗马法的规定。法国法中的物之瑕疵担保的规定基本上是罗马法规则的翻版。而真正对于法国法一般违约体系产生重大影响的是法定的瑕疵担保责任。因为如果存在当事人明示或者默示的物之瑕疵担保的话,如果交付的标的物有瑕疵,适用的就是有关一般的违约责任。法国法中法定的物之瑕疵担保的规定与罗马法中的市政官告示的规定如出一辙,但是由于法国法在一般违约责任的规定与罗马法已不太一样,所以法国法中物之瑕疵担保责任的独立性呈现出了一些不同于罗马法的特征。如在救济的方式,救济的范围,解除权等方面就有了区别于罗马法的特征。 可以说德国人借助其抽象的思维方式将罗马法的规定加以了升华,这种升华不仅仅在于对物之瑕疵担保责任规则的设定上,还表现在了对于罗马法违约形态的归纳和总结之上。在物之瑕疵担保责任的规则方面,德国旧债法将其完全从一般给付障碍体系剥离了出来,在体系上做到了自我圆满,从而将罗马法的传统推到了极致,这是法国法都没有做到的。而在一般违约形态的方面,德国旧债法根据罗马法中的一条法谚,将给付不能认定为给付障碍体系的核心概念,采用“扳道叉式”的原因分类法,按照违约的原因将违约形态分为给付不能,给付迟延两种。这种对于罗马更多还原

【Abstract】 Leistungsstoerungen means that the obligor does not perform his duties according to the contract. It means a lot to the breach liability, for the ways and conditions are different according to the way we deal with it. The legal examples of different countries are divided into two systems, firstly the system of dualism, and secondly the unified system, the continental countries almost take former one, and the anglo-america countries and many international treaties almost take the latter one.The characteristic of dualism system is that liabilities of warranty of quality differs from the liabilities of common leistungsstoerungen system, and forms a kind of independent contract liability. This kind of legislation can date back to Roman law, through French law and German law it spread its influence into the main nations and districts of continental law. Even the English law after 2002 reform digested some ideas of this kind of legislation.Roman law created the dualism system of leistungsstoerungen. This creative achievement started with the idea that cared more for customers and lessee. And this kind of special protection was realized by setting special regulations for most familiar transactions in daily life, providing more remedies for special people like customers and lessee, and making suitable concessions in the conditions of liability. In Roman law we can not find any regulation that reflected the idea of "Caveat Emptor" that was very popular in English law. It can be said that Roman law set a good example for countries that accept continental law in keeping balance between economic growth and social justice, and this choice of value is still not out-dated nowadays.The characteristic of Roman law was kept in French law, the regulations of warranty of quality in French law were almost identical with that of Roman law. And what really mattered in the system of leistungsstoerungen was the liability of warranty of quality set by law, for if there were some agreements about the quality of the objects, whether express or implied, between the parties, the regulations that applied were that of the common liabilities of breach. The regulations of the liability of warranty of quality set by law in French law were nearly identical with that of Roman law, but because the regulations of common liability of breach were totally different, the independence ofliability of warranty of quality presented another face in the manner, scope of remedy, the right of rescission and so on.The Germans sublimed the regulations of Roman law by their abstract thinking pattern, this kind of sublimation relied not only on the regulations of warranty of quality, but also on the summarization and conclusion of forms of breach of Roman law. On one hand, former obligational law of German peeled the regulations of warranty of quality off the common system of leistungsstoerungen, made it totally independent, and by doing so it pushed the tradition of Roman law to a new apex; on the other hand, according to a maxim of Roman law former obligational law of German used "impossibility of performance" as its core definition, and divided the breach into three forms: impossibility of performance n delay and positive breach according to the cause of breach. The rules of sales, lease and some special kinds of contracts are quite different from the rules of impossibility of performance > delay and positive breach. So we can say that liability of warranty of quality formed a totally independent kind of liability that differed from the common liability of breach of contract. This division made great contribution to former German obligational law. Because of the independence of the liability of warranty of quality, breach of contract did not lead to the same liability under all circumstances. Former obligational law provided different remedies for different parties. But just because so, the common system of leistungsstoerungen can not include all situations of breach, and the German courts found it so difficult to deal with this kind of problems, this is why German modified its obligational law in 2002.On 1 January 2002, the most sweeping reform that has ever affected the code entered into force. It has remoulded large parts of the German law of obligations. At the same time, it has led to a deep division among legal scholars in Germany. For, on one hand, the reform was hailed as having been overdue and as bringing some of the most outdated parts of the BGB into line with modern international developments. On the other hand, there has been fierce criticism focusing, in particular, on the extraordinarily tight schedule for forcing through such fundamental changes. It might have been better, so it was maintained, to have an old code rather than a bad and ill-prepared one. It is not easy to provide a fair assessment of these different views. There is some truth on both sides. When the idea of a reform of the law of obligations was first mooted the reform was to have been comprehensive. Thus, it was intended to cover areas like unjustified enrichment, delict and strict liability, suretyship and partnership. By the time, however,when the commission charged with the revision of the law of obligations was appointed in 1984, the project had become somewhat less ambitious. It was decided to confine the commission’s brief to the law of breach of contract, liability for defects in contracts of sale and contracts for work, and extinctive prescription (limitation of claims). The discussion draft, however, once again extended the scope of the reform. In the end, the following areas of the law of obligations have been affected: extinctive prescription, breach of contract, contracts of sale, contracts for work, credit transactions, and restitution after termination for breach of contract. The Standard Contract Terms Act and a number of special statutes aiming at the protection of the consumer have been integrated into the BGB. But as a result the revised obligational law did not eliminate the special liability of warranty of quality.Although Japan accepted German law mostly, but unlike other countries, Japan did not copied German law word by word, but made some modifications to the German and Roman law. On forms of breach, Japanese law accepted the division of breach into three forms-impossibility of performance, delay and positive breach. But on the liability of warranty of quality, the rules of liability of warranty of right in Japan were more similar to that of the German and Roman law. This made the system of leistungsstoerungen of Japan very special among countries that accepted continental law.The characteristic of unified system of leistungsstoerungen is that all different types of breach are governed by a unified rule, no matter what the cause is. Defective delivery is also a kind of breach, the rules governs it is no different. This kind of legislation is popular in anglo-american law countries and some international treaties.The reason why anglo-american law is the representative of unified system of leistungsstoerungen is that anglo-american law use a unified rule govern all the breaches, no matter what the cause is. This was because that on one hand there was no implied warranties of quality in early English law; on the other hand English law was not interested in the reasons why there came these breaches. When there were breaches, what the judges of anglo-american law thought about was whether the term been broken was a "condition" or a "warranty". As for whether the breach was cause by impossibility or delay or defective delivery does not matter. Although ((Sales of Goods)) of England and ((Uniform Commercial Code)) of USA set implied warranty duties, the rules that applied when these duties were broken were no different. So the liability of warranty of quality is just one kind of common liability of breach, conditions of liability and theremedy was all the same. This was not modified until the 2002 ((Sales of Goods)) came into force.In the new English ((Sales of Goods)) ,when there was a breach of contract, firstly the judges must decide whether the breach was a defective delivery, if it was so then the vendee can set a reasonable period for the vendor, and called for repair or change, the vendee can also called for reduction of price or rescission of the contract; if it was not so, the judges must decide whether the terms been broken was a "condition" or a "warranty". If it was a "condition", it gave rise to rescission and damages, if it was a "warranty", it only gave rise to damages or specific performance. This was the whole system that works now in England.Some related international treaties such as ((ULIS)) in 1964, CCISG)) in 1980 were almost the same as that of the anglo-american law in this area.By comparison between these two different systems, I think that the system of Roman law is more favorable, independent liability of warranty of quality can do better when the weakers called hopelessly for help, what we should do is not to weaken this independency, but to eliminate the old definition system of common leistungsstoerungen, do not let the problems of common leistungsstoerungen bother the rules of warranty of quality any more.更多还原