中國大陸可預見性規則的形骸化與突破

Cavitation and Breakthroughs of the Foreseeability Rule in Mainland China

中國《民法典》第584條所確立的可預見性規則在實踐運用中處於具文狀態，其規則內核被確定性規則所替代。然而，確定性規則不僅有悖條文原意，且相關判斷易受各種不確定因素影響，這反而使得該規則的不確定性遞增。鑑於此，對可預見性規則的解釋應回歸條文本意尋求解答。當下，中國大陸學界對《民法典》第584條之解釋與日本民法第416條通說大致相同。於日本學界，通說確立後，學說和實踐中尚存諸多爭議。近期日本債法修改，圍繞第416條的探討激烈，各方無法達成共識，最終僅就文字作細微修訂。相關修訂意在明確第416條的基礎為可預見性規則，並在區分通常損害與特別損害的前提下，延用了判例實務的判斷框架。剖析日本經驗可知，在區分契約特性的基礎之上，分別明確各類典型契約的損害賠償範圍，可謂《民法典》第584條解釋的方向。

The foreseeability rule, established in Article 584 of China’s Civil Code, has been dead letter in practice, and its core has been replaced by the certainty rule. However, the certainty rule is not only contrary to the origin intent of the article, but also susceptible to a variety of uncertainties, which in turn increases the uncertainty of the rule. In view of this, the interpretation of the foreseeability rule should return to the intent of the article to seek an answer. At present, the interpretation of Article 584 of the Civil Code by mainland Chinese scholars is roughly the same as that of Article 416 of the Japanese Civil Code. In the Japanese academic circle, there are still many controversies in the academic and practical fields, albiet with a common interpretation. In the recent revision of the Japanese Law of Obligations, there were heated debates on Article 416 where no consensus could be reached among the parties, and only minor textual amendments were made in the end. The amendment is intended to clarify that the basis of Article 416 is the foreseeability rule, and follow the judgment framework of previous cases in practice on the premise of distinguishing between general and special damages. By analysing the experience in Japan, it can be seen that the direction of the interpretation of Article 584 of China’s Civil Code is to clarify the scope of damages for each type of typical contract on the basis of distinguishing the contract’s characteristics.