Transformation From Consensual Contract To Real Contract

Since the period of Roman law divided the essential contract and the real contract,the contract form has completed the leap from form coercion to voluntary autonomy during the evolution of Roman contract law to modern contract law.From the transformation of doctrine to idealism,the core of contract freedom as voluntary autonomy has been unanimously recognized by modern contract law.Under the influence of the concept of modern contract law,many countries and regions that have successively received the contract for important things in Roman law have embarked on the road of real contract and gradually completed the legislative work to be materialized.With the development of the commodity economy and the improvement of the credit system,the separation between meaning and delivery is intensifying day by day.The formal regulation of essential contract inevitably hinders the rapid circulation of market resource elements,which is not conducive to the development of social economy;continue to retain the essential contract Adhere to the delivery of the subject matter as a requirement for the establishment of the contract,which not only runs counter to the concept of contract freedom pursued by modern contract law,but also greatly hinders social and economic development.Therefore,in the context of a modern French contract with freedom of contract,it is necessary to reconsider the remains of Roman law in the contract of important things.This article starts with the study of the contract form of Roman law,examines in detail the legislative status of essential contracts in various development stages,combs its historical changes,analyzes its attribute characteristics,explores its theoretical basis,reflects on its legal value,and in the current law of China after sorting out and analyzing the essential contract specifications,the author made an insight into its development trend,and finally put forward the viewpoint of the fulfillment of the essential contract,with a view to contributing some rough suggestions and references for the current compilation of the civil code.Specifically,this article is divided into the following sections:The first part is the introduction of the problem.The real-life case leads to the contract of important things and points out its shortcomings in today’s business society.With the development of modern economy and society,the increase of commercial transactions,and the contract of important things as the remains of Roman law,whether it can continue to balance the rights and obligations between the two parties deserves a review.The second part is the historical investigation of the contract of important things.Investigate the history of the development of essential contracts,trace back to the origin of essential contracts,review the evolution of contract forms during the period of Roman law,analyze the value function at the beginning of the birth of essential contracts,introduce the development process in the middle of the century,and the major civil law systems in modern times The succession and change of the country and region.This part of the study of the historical changes of the important contract helps to understand the institutional arrangement of the important contract in China’s current law,and provides a historical reference for the legislative improvement of the important contract.The third part is the analysis of the status real contract of the legislation of the important property contract in China.By reviewing the legislative changes of important property contracts in China,clarifying the types of essential property contracts in the current law,trying to sort out the main types of essential property contracts in Chinese laws,analyzing the legislative trends therein,and making legal norms for the reflection and reconstruction of essential property contracts Preparation.The fourth part is the doctrine and reflection of the validity of the contract.One by one analyzes the important contract theory of the important contract in history since the origin of Roman law,and reflects on whether the legal value and logical deduction behind it can continue to justify the continued existence of the important contract.The fifth part is the legislative reform of the contract of important things.Analyze and evaluate the existing doctrines or legislation that appear in the materialization design,and find that each has its flaws and all are improper.Only by reforming the promise can it adapt to social and economic development and conform to the trend of contract law.In the context of a modern French contract with freedom of contract,the contract of essential things is inevitable.To this end,the legislative reform of essential contracts is not only the trend of legislative reform in various countries,but also the ultimate destination of returning to the value of modern contracts.