後合同義務之檢討

現行法關於後合同義務的規定在義務期限、責任性質、歸責原則上存在漏洞或模糊之處，並與債法其他義務間形成體系違反。後合同義務在司法實務中呈現出大規模誤用、濫用，鮮見積極功能。後合同義務可分為保護義務與給付義務，前者與侵權法功能重合，不具有必要性；後者超出侵權法範圍，但有違私法自治及平等原則，不利於勞動者等經濟生活中的弱者，欠缺正當性。德國法發明後合同義務有其特殊的法律背景，此種背景在我國法上並不存在，就此而言，後合同義務與先合同義務存在同類缺陷。有別於先合同義務的是，後合同給付義務的泛化，額外造成背離合同法基本原理之弊害。《民法典各分編（草案）》將之誤認為債法一般義務，更非妥當。後合同義務折射出現代合同法效果與目的背離的通病，在立法方法及民法原理上均值得反思。

There are loopholes or ambiguities in the provisions of the Contract Law and its judicial interpretation on post-contract obligations in terms of the duration of obligations, the nature of liabilities and the principle of imputation, and they are in systematic violation with other obligations of the law of obligation. Post-contract obligations have shown large-scale misuse and abuse in judicial practice, with few positive functions. Post-contract obligations can be divided into protection obligations and performance obligations. Protection obligations are unnecessary because they overlap with the functions of tort law. Performance obligations are unjustified because they violate the principle of private autonomy and equality in private law, which is detriment to protecting the weak in economic life such as workers. The invention of post-contract obligation in German law has its special legal background, which does not exist in Chinese law. In this regard, the post-contract obligation and the pre-contract obligation have the same defects. In addition, unlike the pre-contract obligation, the generalization of the post-contract obligation of performance results in the disadvantage of deviating from the basic principles of contract law. It is more inappropriate for the Civil Code Draft to regard post-contract obligations as general obligations of the law of obligations. The establishment and application of post-contract obligation reflects the common defect that consequence deviating from purpose in modern contract law. It is worth rethinking on both legislative methodology and civil law jurisprudence.