論《民法典》中合同與侵權的開放邊界──以附隨義務的變遷為視角

On the Open Boundary between Contract and Torts in China's Civil Code: From the Perspective of the Transformation of Accessory Obligation

《民法典》頒布後，合同、侵權兩編的界限有待澄清。我國學者主張將保護義務排他性地劃入侵權法，導致我國合同法救濟範圍收窄以及侵權法虛胖，在合同、侵權之間形成多層次競合的複雜局面。從私法史看，該觀點實為潘德克頓法學既有路徑的重現。其背離了羅馬法上合同、侵權自由競合，中間地帶以合同法調整為主，侵權法為輔的開放邊界。現代德國法以附隨義務學說實現了對潘德克頓法學的修補，向羅馬法傳統回調。據此，我國《民法典》應允許適度競合的存在，但在交錯區域應超越傳統競合理論，盡力統合違約及侵權責任的構成要件，達成統一的法律評價結果。

After the promulgation of China's Civil Code, the boundary of contract and torts needs to be clarified. One popular view claims that the obligation of protection should be exclusively classified from contract into torts. But it causes the functional contraction of contract and the puffiness of torts as well as the multi-level competitions between them. From the perspective of the history of civil law, this opinion is the recurrence of the Pandectists, which departed from the open boundary in Roman law, in which contract and torts were allowed to compete freely, but the crossing area was mainly regulated by contract with the supplement of torts. But modern German law repaired the defects of Pandectists by developing the doctrine of accessory obligation and turned back to the Roman tradition. Accordingly, China's Civil Code should allow the existence of moderate competition in the crossing area but go beyond the traditional theories by integrating the factors of contractual and tortious liability to reach a unified legal result.