民法中法律行为的概念和特征

E. Titov
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摘要

本文的目的是对法律文献和实践中确立的法律行为的概念和特征以及区分法律行为和事件的标准进行批判性评估。作者指出的主要问题是,尽管关于这一问题的资料非常多,但自19世纪初以来,法律学对这一现象的研究并没有取得进展。法律行为的定义和特征通常从一部作品“迁移”到另一部作品,根本没有任何批判性分析,并被律师视为给定的,这导致了相关领域发展的停滞。与此同时,对法律行为具体种类的研究往往陷入僵局,正是因为对法律行为的一般特征的定义不正确。界定了法律事实区分的分类标准,论证了将法律事实分为事件和行为两部分的必要性。事实状态不能在法律事实的分类中以意志为依据加以区分,事实状态根本不是法律事实。给出了法律诉讼的概念及其特征。本文讨论了意志作为法律行为要素的概念,并论证了“非自愿”行为不是法律事实。笔者分析了绝对事件和相对事件的分类,并提出了一种确定某一法律事实是指事件还是指行为的算法。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Concept and Characteristics of a Legal Action in Civil Law
The purpose of the article is a critical assessment of the established in the legal literature and practice the concept and characteristics of a legal action and criteria for distinguishing legal actions and events. The main problem identified by the author is that, despite the huge number of sources on this subject, jurisprudence has not progressed in the study of this phenomenon since the early 19th century. The definition and characteristics of a legal action «migrate» from one work to another, as a rule, without any critical analysis at all and are taken by lawyers as a given, which leads to stagnation in the development of the relevant field. At the same time, studies of specific varieties of legal actions often reach a deadlock precisely because of the incorrectly defined general characteristics of a legal action. The author defines the classification criterion of differentiation of legal facts, and argues the necessity of two-member division of legal facts into events and actions. It is proved that facts-states cannot be distinguished within the classification of legal facts on the volitional ground and they are not legal facts at all. The concept of legal action and its characteristics are given. The concept of will as a key element of legal action is discussed in the article and it is substantiated that «involuntary» actions are not legal facts. The author analyzes the classification of events into absolute and relative, and offers an algorithm for determining whether a certain legal fact refers to events or actions.
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