摘要
作为一种法律事实,准法律行为属于与自然事件有别的行为,它指向构造为"表示行为+效果法定"的法律规范,表示行为是其构成要素,但法律效果完全由法律规定。无论是构成要件还是法律效果,准法律行为与法律行为、事实行为均相当不同,它因此具有独立存在的价值。根据表示对象的不同,准法律行为分为意思通知、观念通知和感情表示,它们的法律适用有所不同,主要表现为意思表示规范原则上可类推适用于具体的意思通知行为,但能否类推适用于具体的观念通知或感情表示行为,需根据具体情形分别斟酌。尽管准法律行为与法律行为、事实行为差别明显,但它们的关联相当紧密,在规范布局上,它们或者因具有相同或相近的功能,或者因围绕同一目的而前后衔接,能放在同一规范或同一规范群中加以统一规制;在规范适用上,准法律行为和法律行为既可能并存适用,也可能类推适用。
Quasi-juristic acts, as a kind of juristic fact, differ from natural events in that they are regulated by legal norms with ＂act of expression ＋ legally prescribed effect＂ structure. It takes the act of expression as its constitutive requirement, but its legal effect is entirely prescribed by law. A quasi-juristic act is very different from either a juristic act or a factual behavior, whether in terms of constitutive requirement or in terms of legal effect, and therefore has its value for independent existence. Quasi-juristic acts can be classified by the object of expression into three different types： notification of intension, notification of idea, and expression of emotion-each one of them being different from the other two in terms of the application of law. More specifically, legal norms on the expression of intension can be applied by analogy to concrete acts of notification of intension; the question of whether such legal norms can be applied by analogy to concrete acts of notification of idea or expression of emotion needs to be considered in light of concrete situation in each individual case. Although quasi-juristic acts, juristic acts and factual behaviors are different from each other, they are closely related to each other. In terms of the overall arrangement of legal group of norms either because they have nected to each other by the same objectiv norms, they can be regulated by the same norms or identical or similar functions or because they are cone In terms of the application of legal norms, it is possible for a same legal norm to be applied to both juristic acts and quasi-juristic acts, either concurrently or by analogy
出处
《环球法律评论》
CSSCI
北大核心
2014年第2期47-64,共18页
Global Law Review
