罗马法禁止解除约款之原因

罗马法上的解除约款在我国称之为流质契约,大陆法系国家承袭罗马法传统,大多对其持禁止态度。近来有学者从对自由意志之维护和担保权实现之效率角度出发,要求废除解除约款之禁令。我国目前保障制度不健全,商品经济活动日益频繁但诚信制度建设缺失,允许解除约款易产生一系列社会问题,有失公平。

The Reason of Banning Lex Commissoria in Roman Law

The lex commissoria of Roman law is called fluidity contract in China. The countries of civil law have in- herited the tradition of Roman law, most of which hold a negative attitude towards it. Recently some scholars call for banning lex commissoria from the point of view of maintaining free will and the efficiency of realizing security rights. The current security system is not perfect in China, and commodity economy is growing rapidly, but it is lack of the construction of credit system. Allowing lex commissoria is easy to produce a series of social problems and cause unfairness.