法学研究

文章摘要

中国法学对外交流与研究中的概念对接——以多数人之债实体与程序的中德比较研究为例

Conceptual Interface in the Chinese Legal Scholarship’s Foreign Exchange and Research

DOI：

英文关键词: joint and several liability; degree of causation; independent tortfeasors; joinder of parties; third-party notice

基金项目:

作者	单位
卜元石

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中文摘要:

概念的准确对接，是不同法文化互鉴的前提，也为观察本国法提供了新视角。本文选取多数人之债中的若干中国法概念，尝试在德国法中寻找能够与其对接的术语，借此探讨概念对接出现问题的原因、在实践中呈现的样态，以及概念对接的潜在功用。在实体法领域，借助对不真正连带之债、补充责任与原因力概念对接的考察，可以更好地向海外学者解释中国法中多数人侵权责任形态多样化、按份责任主流化背后的逻辑。通过对追偿权和法定代位权这两对中德法中貌似一致的概念之可对接性的分析，可以揭示其根本区别，阐释两国法律在连带之债时效问题上解决路径之差异的根源与效果。在程序法领域，以共同诉讼类型的中德对接为切入点，可以发现中国法对于共同诉讼乃复数之诉的认识尚且模糊，导致对于共同诉讼当事人之间关系的认识不够清晰，进而对诉讼标的、判决既判力形成了与德国共同诉讼理论完全不同的认知，造成问题处理上的巨大差异以及对话的困难。提高法学概念对接意识，关注外来概念在本土语境的演变，有助于在对外交流中进行有效沟通，以及在研究中探寻中国法的独特性。

英文摘要:

Accurate conceptual interface is a prerequisite for mutual understanding and reference between different legal cultures and provides new perspectives for observing Chinese domestic law as well. This article attempts to find corresponding terms in German law for some selected Chinese legal concepts relating to multiple debtors, so as to explore the causes of the problem with the conceptual interface and its practical constellations, as well as the potential function of the conceptual interface. In the field of substantive law, by examining the conceptual interface between the Chinese and German terms of non-genuine joint and several liability, supplementary liability and degree of causation, we can better explain to overseas scholars the logic behind the diversification of liability forms and the mainstreaming of several liability with regards to multiple tortfeasors under Chinese law. By analyzing the connectivity between the seemingly identical concepts of the right of contribution and the right of statutory subrogation in Chinese and German law, this article reveals their fundamental differences and illustrates the root and effects of the differences in the paths of solving the problem of statute of limitations of joint and several liability between the two jurisdictions. In the field of procedural law, taking the interface between Chinese and German law on the types of joinder of parties as an entry point, it can be found that Chinese law has ambiguous consciousness of the joinder of parties being a plurality of claims (actio), which leads to a lack of clear understanding of the relationship between the parties and then to a completely different perception of the subject matter of the dispute and res judicata from that of the German ones. It results in a huge divergence in the approaches to solving relevant problems and difficulties in conducting dialogs. Improving the awareness of the interface between legal concepts and paying attention to the evolution of foreign concepts in the Chinese domestic context will help Chinese scholars to communicate effectively in exchanges with foreign scholars and explore the uniqueness of Chinese law.

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