摘要
传统民法对第三人欺诈与第三人胁迫采取区分式的立法模式。在第三人欺诈情形,排除意思表示人针对善意相对人撤销其意思表示的权利;在第三人胁迫情形,则赋予意思表示人以无限制的撤销其意思表示的权利。区分模式忽视对交易安全的保障,造成法律制度内部的冲突。对第三人欺诈与第三人胁迫设立统一规则的模式具有诸多优点,在最近的民法理论中得到越来越多的支持。在未来中国民法典的编纂中,应对第三人欺诈与第三人胁迫采纳统一的规则模式,承认在无信赖利益保护需求时,被欺诈人与被胁迫人享有撤销权。
In Civilian tradition, civil codes usually adopt different rules on deceit by third party and duress by third party. In the case of deceit by third party, if the counter party is in good faith, the party under deceit can not avoid his declaration of will. But in the case of duress by third party, the party under duress can always avoid his declaration of will, even if the counter party is in good faith. This solution is usually held to have its origin in Roman law. But the actio rectus casa in Roman law is an instrument mainly serving for the scope of the restitutio in integrum, and has its peculiar social backgrounds.
The traditional pattern of civil codes has some obvious defects in protection of party in good faith and becomes a great threat to the safety and stability of transactions. And it can not logically explain why some damage caused illegally by the third party should be transferred to the party in good faith. Based on these arguments, the uniform model which sets the same rule on deceit by third party and duress by third party should be adopted. This model gives more protection to the party in good faith and emphasizes more on the value of stability and certainty of transactions. Moreover, this model has not the defect of over--commercialization. Through the rule on the definition of the ＂third＂ party and the concrete criteria on ＂good faith＂, the different social--economic conditions of the parties involved in the transaction will be valued and balanced quite sufficiently. In the codification of Chinese civil law, we should adopt the uniform model on deceit by third party and duress by third party.
出处
《法学研究》
CSSCI
北大核心
2011年第1期58-67,共10页
Chinese Journal of Law
关键词
第三人欺诈
第三人胁迫
区分模式
统一模式
可撤销法律行为
deceit by third party, duress by third party, differentiation model, uniform model, avoidable legal action
