论英美法引入与中国合同法的发展

刘承韪

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November 2022

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Citation: Chengwei LIU. On the Introduction of Anglo-American Law and the Development of Chinese Contract Law[J]. Academic Monthly, 2022, 54(4): 100-120. shu

On the Introduction of Anglo-American Law and the Development of Chinese Contract Law

Chengwei LIU

Abstract

The common law system and the civil law system are known as the two major legal systems in the world, and both belong to the content of the Western legal tradition. In the process of studying Western law and reforming the law in modern times, China passed by the Anglo-American law, and finally chose the civil law system as the template for reform and study. However, after the reform and opening up in 1978, especially from the foreign-related economic contract law, China has borrowed a large number of commercial and contract law systems from common law in the construction of the rule of law in market economy. Much of contract law is the result of indirect learning of common law by imitating and drawing on CISG conventions and UPICC general principles. The Contract Law of Civil Code inherits the style and content of the Uniform Contract Law of 1999. In particular, the contract remedy system is greatly influenced by Anglo-American law, especially in the anticipatory breach system, fundamental breach system, strict liability principle, foreseeable rule, mitigation rule, compensation system for spiritual damages for breach of contract, which have been transplanted and borrowed from the content of Anglo-American contract law, forming a comparative law spectacle of successfully mixing and inheriting the civil law system and the Anglo-American law system. Chinese Civil Code takes the strengths of each family through the method of mixed inheritance, and strides forward on the road of enrichment and development.
- Anglo-American law,
- law revision in late Qing Dynasty,
- foreign-related economic contract law,
- unified contract law,
- Civil code
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通讯作者: 陈斌, bchen63@163.com

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沈阳化工大学材料科学与工程学院沈阳 110142

On the Introduction of Anglo-American Law and the Development of Chinese Contract Law

Chengwei LIU

Available Online: 2022-04-20

Abstract: The common law system and the civil law system are known as the two major legal systems in the world, and both belong to the content of the Western legal tradition. In the process of studying Western law and reforming the law in modern times, China passed by the Anglo-American law, and finally chose the civil law system as the template for reform and study. However, after the reform and opening up in 1978, especially from the foreign-related economic contract law, China has borrowed a large number of commercial and contract law systems from common law in the construction of the rule of law in market economy. Much of contract law is the result of indirect learning of common law by imitating and drawing on CISG conventions and UPICC general principles. The Contract Law of Civil Code inherits the style and content of the Uniform Contract Law of 1999. In particular, the contract remedy system is greatly influenced by Anglo-American law, especially in the anticipatory breach system, fundamental breach system, strict liability principle, foreseeable rule, mitigation rule, compensation system for spiritual damages for breach of contract, which have been transplanted and borrowed from the content of Anglo-American contract law, forming a comparative law spectacle of successfully mixing and inheriting the civil law system and the Anglo-American law system. Chinese Civil Code takes the strengths of each family through the method of mixed inheritance, and strides forward on the road of enrichment and development.

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