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传统债法体系结构一般包括总则,合同,无因管理,不当得利与侵权行为,这是从债的产生根据出发得出的结论,这种模式有它自身的优点,而笔者以为应该对传统债法体系建立的价值取向和具体标准进行反思。债法体系的构造应该着重于债事法律的适用考量,从债法之履行法的本质出发对传统的所谓债的具体制度如侵权行为制度等进行剥离,从而主张现代债法体系只包括合同和侵权行为两编,而不设置债法总则,并且把传统的不当得利和无因管理作为准契约放在合同法分则部分规定,其他的不典型债则安排在具体的民法制度(包括亲属法,物权法,继承法等)中规定。同时,不设置债法总则,并不是说不要债的概念,对于传统债的概念,本文主张可以放在民法典总则编或者合同法总则规定,这也无不可。
The traditional debt law system structure generally includes general principles, contracts, non-management, unjust enrichment and infringement. This is the conclusion from the departure of debt generation. This model has its own advantages, and I think it should be based on tradition Reflections on the Value Orientation and Specific Standards of the System of Debt Law. The structure of debt law system should focus on the application of debt law considerations, starting from the essence of debt law enforcement law on the so-called specific system of so-called debt, such as infringement system to be stripped, thus claiming that the modern debt law system includes only contracts and The two sets of violations, without setting the general principles of debt, and the traditional unjust enrichment and non-management as a standard contract contract provisions of the law, the other atypical debt is arranged in the specific civil law system (including the kin law , Property Law, Inheritance Law, etc.). At the same time, do not set the general principle of debt, not to say that the concept of debt-free, for the concept of traditional bonds, this article can be placed on the General Code of Civil Code or the provisions of the general law of contract law, which is all.