事实行为的基础规范
常鹏翱事实行为的基础规范
Basic Normative Issues of Factual Act
期刊名称：《法学研究》
期刊年份：
作者：常鹏翱
单位：北京大学法学院
中文关键词：事实行为;法律事实;构成要件;法律行为;体系化
英文关键词：the factual act;the legal fact;constitutive requirement;the legal act;systematization
中文摘要：
在构成要件的规范意义上，事实行为是产生特定事实效果，并因此导致法律效果法定化的行为，既不同于行为范畴外的自然事实和纯粹人体事实，也与法律行为和准法律行为有本质差异。从意思要素的作用来看，事实行为分为无目的意思、目的意思不独立和目的意思独立三种类型，呈现出体系化的架构。事实行为在与法律行为对立和互斥的同时，在规范关系上还有协力并存和制约并存的形态。
英文摘要：
In the sense of norm, the factual act is one of the constitutive requirements of law, leading to legal effects according to its actual consequences. Whatever specific act meeting the above-mentioned requirements is the factual act, a kind of legal facts. Obviously, as a kind of action of human being, the factual act is different from natural facts and pure facts about human flesh, because there is no position of human action in the latter two constitutive requirements. Moreover, in the field of the legitimate acts, the factual act is not the expressive act and includes the actual consequences, so it has essential differences with the legal act and the quasi-legal act, both of which are expressive acts and actual consequences are not necessary to them. Furthermore, because of its legitimate quality, the factual act is also different from the tort, which belongs to the category of illegitimate acts. As one of the constitutive requirements, sometimes the factual act needs no intention, such as the discovery of an object buried underground and processing. Sometimes it includes an intention, which can further be divided into the factual act with dependent intention, such as acquisition and loss of possession, and the factual act with independent intention, such as management of affairs without mandate. The fact that the factual acts are classified according to the position of intention in the constitutive requirements shows that the factual acts are systematic. Therefore, as far as the meaning of the factual act is concerned, not only its attribute as one of the constitutive requirements but also its different demands for intention should be paid attention to. The factual act and the legal act are theoretically contradictory and mutually exclusive. They have different normative means with the former having no function of self-government. However, they are interdependent to perform some functions. For example, the conduct of spontaneous agency can be a legal act, and the cause of delivery can be a sale contract. Meanwhile, they are also mutually restraint. For instance, in a real act, the delivery determines the establishment or effectiveness of the legal act. It is in the interleaving of different act norms that the systematization nature of Civil Law emerges and the practice could be interpreted rationally and regulated wholly.
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