合同法的去法典化

Streszcz. w j.chińskim s. 149.

Decodification has a significant impact not only on legislation, but on legal transactions and jurisprudence as well. European efforts to codify civil law were made possible by political decisions to prepare a civil code for the Continent. All the efforts started as an academic initiative and became an intellectual challenge. The paper analyses two realms of legal experience that must be considered when discussing the decodification of contract law. First, history shows that the process of codification has been exhausted, as it is unable to exceed the national level. Second, the nature of contracts becomes itself more jurisprudential. Contracts are becoming an object of relational thinking, and questions on values behind contracts arise inevitably. Codification sets a framework for the law of contracts, but the parties discuss the content of their agreement when executing a contract. They do not simply execute the terms of the contract. The progress of decodification is deepened in Europe by the shift in interpretation of contracts. The main tasks are securing the integrity of relations and mitigation of conflicts. Roman law as a jurisprudential approach to the legal history of private law reminds us of the importance of the complex experience offered by legal history. The Roman jurisprudential framework delivers tools to describe the present situation.