论文部分内容阅读
长期以来,民法上和解被归入民事实体私法契约体系之中。然而,以债法基本原理加以衡量可知,民法上和解关系的内容不限于财产关系,其性质不具有基础性,其标的不具有可确定性,与债法上的债务承认契约也有本质的区别。将民法上和解定性为实体私法契约的学说使得和解作为纠纷解决机制的应有的制度功能无从实现,应当予以废弃。
For a long time, reconciliation in civil law has been classified as the contracting system of civil law and private law. However, according to the basic principles of debt law, we can see that the content of the reconciliation relationship in civil law is not limited to property relations. Its nature is not fundamental and its subject matter is not definable. It is also essentially different from the debt recognition contract in debt law. The doctrine that the reconciliation in civil law is defined as the contract of substantive private law makes reconciliation as an institutional system of dispute resolution ineffective and should be abandoned.