德國民法典對美國法的影響

德國和美國分別屬於大陸法和普通法國家，兩國法律制度差別甚巨。在民法方面，德國民法典是否以及在多大程度上影響了美國法，是本文的主要話題。作者指出，本質上為判例法的普通法或許具有某些與法典編纂不相容的特性。然而美國在1 9 世紀也曾有過法典編纂的不成功的努力，2 0 世紀的美國《統一商法典》作為自成一類的法典編纂，也因其主要起草人熟諳德國法的緣故而可能受到了德國法的啟示。作者還從法哲學的角度分析了德國民法典的概念技術在美國法的應用，透過二者异曲同工之處看到了前者對後者一定程度的影響。盡管美國沒有包羅萬象的抽象化、體系化的民法典，卻接受了德國的潘德克吞方法。最後，作者再度指出，普通法或許具有某些與法典化和抽象化不相容的特性，且由於美國法律文化的本性，很難全盤接受德國民法典的方法；相反，今日之德國法卻受到了美國法的影響。

German law’s tradition is civil law, whereas that of United States is common law. There are many differences between the legal Systems of them. The main topic of the present article is whether and to what extent BGB has influenced US law in the aspect of civil law. The author points out that common law, which in essence is judge-made law, probably has some peculiarities which are incompatible to codification. Nevertheless there were in fact failed attempts to codify US private law in the 19th Century. And the American Unified Commercial Code of the 20th Century, as a codification suis generis, had probably inspirations from BGB due to the familiarity with German law of its principal draftsman. The author also analyses the application of the concept technique of BGB in US law, and flnds certain influences of BGB on US law through the common characteristics of the two. Although there are not comprehensive, abstract and systemised codes in the United States, American jurists have adopted the German Pandectist method. Finally, the author points out once more that common law has probably some special characteristics, which are incompatible to codification and abstractness. What’s more, because of the nature of American legal culture, it might be difficult to adopt completely the method of BGB in the United States. On the contrary, German law has been influenced by US law, today.