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债的概念和债法体系起源于罗马法,但罗马法上没有区别债与责任。直至近现代民法才对债与责任在概念上作了区分,而在立法体例上一直将二者融为一体,并且因债与责任关系的处理不同,各国民法典体例也各不相同。现代民法实践已突破了债与责任的融合,责任为债所包含的理论自然也需要打破。本文拟在对债责关系追根溯源的基础上,对当前几家学说加以评析,以进一步澄清认识,以期能为我国民法典立法体例的选择有所助益。
The concept of debt and debt system originated in the Roman law, but there is no difference between the debt and liability in Roman law. Until recently, civil law only made a conceptual distinction between debt and liability. However, the legislation has always integrated the two. And because the handling of the relationship between debt and responsibility is different, the civil code of each country varies from place to place. The practice of modern civil law has broken through the integration of debt and responsibility, and the theory of responsibility as debt naturally needs to be broken. Based on the tracing of the debt-liability relationship, this article attempts to appraise the current theories to further clarify the understanding so as to be helpful for the choice of the legal system of civil code in our country.