earticle

영어

The release of debt is traditionally deemed as a contract since its origin from Roman law. A “unilateral juristic act” theory came out in 20th centuries in some east-Asian countries, which was developed based on the theory on the abandonment of rights; unreasonably, the “unilateral juristic act” theory does not take the interests and the will of the debtor into consideration. It is therefore held by the author that the contract theory is more solid than the “unilateral juristic act” theory, as the contract theory has sound historical origin, well reflects the characteristic of the relation of obligation, and is in line with the idea of private autonomy.

중국어

债务免除之性质, 自罗马法以来一直采取契约说。但自二十世纪以来, 东亚一些国家改采单方行为说。单方行为说以权利可得抛弃为出发点, 其结果必然是不考虑债务人的利益和意志, 殊为不妥。而契约说不仅有其历史根源, 而且更能契合债务关系的特质, 更能贯彻私法自治的理念, 教单方行为说更胜一筹。