論以權利、義務和責任為結構的民法典模式——“民事責任後果說”之檢討

On the Civil Code Based on the Construction of Right, Obligation and Liability

羅馬法、日耳曼法到德國民法的責任理念，都是為了“擔保”債權的實現而存在。物權和債權區分是民法典體系的主要體現。魏振瀛教授以法理學中的權利、義務和責任理論作為上位概念，批判德國民法中“損害賠償責任還是義務”、沒有區分義務和責任的做法，堅持具有開放性的“民事責任後果說”更有利於保護財產性和非財產性（人格權）的權利，請求權也變更為原權利的請求權（只有債權）和救濟權的請求權（請求責任人承擔責任）。然而，非財產性的救濟方法不足以否認德國民法的責任理念以及整個民法典體系，“民事責任後果說”反而壓縮了請求權的行使階段，淡化權利思維，以法理學的責任概念作為指導更是存在重大疑問；以這種理念為指導的民法典模式也就值得商榷。

From the Rome law, the Germanic law to the German Civil Law,the idea of liability, is to realize the creditors rights.The division of the right in property and the creditors right is the main reflection of the Civil Code system. Professor Wei Zhenying, according to the theory of Right, Obligation and Liability in jurisprudence as the upper concepts, criticized the practice of German Civil Law that there is no division of liability and obligation, insisted that the open theory of “regarding liabilities as consequences” is more conducive to protect the property and nonproperty rights (the right of personality), and the right to claim is changed to the original right that consists of creditors rights and the right to claim that is about the right of relief (i.e., requesting someone to be responsibile). However, the means of relief towards nonproperty rights is not enough to deny the German idea of liability and the whole Civil Law system, but the theory of “regarding liabilities as consequences” decreases the stages to exercise his right to claim, weakens the idea of rights,and is questionable when using the theory of “regarding liabilities as consequences” as guidance.The Civil Code system guided by this idea is also quentionable.