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就我国民法总则错误制度之构造而言,现有民法总则草案有一元模式与二元模式之分,这两种模式分别反映了错误制度在民法立法论上的罗马—法国法传统与德国法传统。民法总则是潘得克吞体系的产物,二元模式符合这一体系下制度构造之基本逻辑。从德国法到中国法,二元模式经百年来学理、判例改造,形成稳定的通说和大量司法实践经验,并在网络时代展现出全新的解释力。在形式上,应从客观存在的动机错误与表示错误之分出发构造错误制度。在实质上,应在承认人的有限理性之基础上赋予表意人撤销自由,并通过不以过错为条件的信赖赔偿责任实现交易安全之保障。二元模式的错误制度构造符合民法总则之利益格局,体系化考量则在民法总则制度构造论中扮演着重要角色。
As far as the construction of the error system of the general rules of civil law in our country is concerned, the existing draft general rules of civil law have the distinction between the unilateral model and the dual model, which respectively reflect the traditions of Roman-French law and German law . The general rule of civil law is the product of Pandektur system, and the dualistic model accords with the basic logic of system construction under this system. From the German law to the Chinese law, the dualistic model has undergone a century-long study and transformation of its jurisprudence to form a stable general theory and a great deal of judicial practice experience, and has shown a completely new explanatory power in the Internet age. In terms of form, we should construct the wrong system from the objective motivations and errors. In essence, people should be given the right of withdrawal of freedom on the basis of recognizing the limited rationality of human beings, and the guarantee of transaction security should be realized through the liability of indemnity under the condition of no fault. The wrong system of the dualistic model constructs a pattern of interests in conformity with the general rules of civil law, and the systematic consideration takes an important part in the construction of the general rules of civil law.