《民法典》第679條（自然人借款合同的成立）評注

Comments on Article 679 of the Civil Code (Formation of Natural Person Loan Contract)

《民法典》第679條的規範意圖在於將自然人借款規定為要物合同，但要物性在實踐與解釋論層面都造成了一定的障礙，應區分民事自然人借款和商事意圖的自然人借款，分別認定其成立要件。司法裁判普遍承認“在先借款合意”的效力，因此商事意圖的自然人借款應采“二階段合意”的法律構造。第679條規定的要物性不僅體現在成立要件方面，還表現為還款義務發生的要物性。第679條是半强制性規範，並不排斥非典型自然人借款的存在，應尊重當事人的意思，承認諾成的自然人借款合同。

The normative intention of Article 679 of the Civil Code is to define the loan of natural persons as the real contract. But this rule has caused certain obstacles to juridical practice and academic theory. It's also necessary to distinguish the loan of civil natural persons and the loan of natural persons with commercial purpose and identify their establishment requirements respectively. The validity of 'prior loan consensus' is recognized by most courts, and the formation of the loan of natural persons with commercial purpose should he explained as two-stage consensus. The 'real essential element' requirement of Article 679 is not only reflected in the formation requirements, but also in the obligations of repayment. Article 679 is a semi-mandatory norm. The parties could conclude the loan as a consensual contract, which is by nature an innominate contract.