论法律行为成立与生效之区分

On the Distinction between Requirements of Establishment and Validity of Juristic Acts

摘要: 法律行为成立与生效之区分为大陆法系之传统，此种区分在概念与逻辑、法律适用以及程序法上均具有重要实益。不能仅因法律行为之不成立与无效在实现当事人所意欲之法律效果上无实质区别，就否认区分法律行为成立与生效之必要。传统法律行为要件体系看似细致严谨，但诸多要件之归置混乱不清，且与私法自治理念不符。以“效力障碍事由”替代“生效要件”，并将当事人基于意思自治所约定之特定形式以及条件与期限排除于法律行为要件体系，从而对法律行为要件理论进行重塑，可明晰各要件之关系，与程序法相衔接，并有利于私法自治之维护。

Abstract: The distinction between the establishment and validity of juristic acts is a tradition of the civil law system, which is of great significance in terms of concepts and logic, legal application, and procedural law. It is not justifiable to deny the necessity of distinguishing between the establishment and validity of juristic acts simply because there is no substantial difference in achieving the intended legal effects of the parties due to the non-establishment and invalidity of juristic acts. The traditional requirements system of juristic acts seems to be meticulous and rigorous, but the placement of many requirements is confusing and inconsistent with the autonomy spirit of private law. By replacing the “requirements of validity” with “validity obstacles”, and excluding the specific forms, certain conditions and time period agreed upon by the parties based on their autonomy of the will from the requirements system of juristic acts, thereby reshaping the theory of the requirements of juristic acts, it can clarify the relationship between various requirements, align with procedural law, and facilitate the private autonomy.