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我国的司法判决中,法院在处理重大误解的案件时开始使用“行为的前提”甚至经济学中“风险承担”等概念,但这些概念在现存的以“内容错误”为核心的概念体系中如何定位,“前提”和“风险”之间又是怎样的适用关系,还欠缺细致的说明。笔者通过借鉴日本民法中有关错误论的研究经验,尝试对上述概念进行理论构成。“行为的前提”指的是能够影响合同对价的双方动机错误。对于动机错误是否可以通过错误条款(日本民法第95条)获得救济,日本法上经历了二元论、一元论、新二元论、多元论的发展历程。在日本学界,将影响合同对价的“中间合意”从动机中抽离出来作为独立的救济理由是学说发展的潮流,这一结论与我国司法判决的动向是一致的。最后,笔者以“前提”理论和“风险承担”思想间的关系为例,尝试回答经济分析的方法在民法解释论中合理适用的界限。
In our country's judicial decisions, the courts began to use the concepts of “preconditions of behavior” and even “economics” in economics when dealing with cases of major misunderstandings. However, these concepts have been used in the existing “error of content” How to locate the core conceptual system, what is the applicable relationship between “premise” and “risk”, and lack of detailed explanation. By referring to the research experience of false theory in Japanese civil law, the author tries to make a theoretical composition of the above concepts. “The premise of behavior ” refers to both motivational errors that can affect the consideration of the contract. As to whether motivation mistakes can be remedied through the erroneous clause (Article 95 of Japanese Civil Law), the Japanese law has undergone the course of development of dualism, monism, new dualism and pluralism. In Japanese academia, it is the tide of development of theory that the “intermediate intension” that influences the consideration of the contract is pulled out from the motivation as an independent cause of relief. This conclusion is consistent with the trend of judgments in our country. Finally, taking the relationship between “premise” theory and “risk commitment” as an example, the author tries to answer the reasonable application of the method of economic analysis in civil law interpretation theory.