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不完全给付成为台湾地区“民法”明文规定的债务不履行态样,且又有瑕疵给付及加害给付之分,均为日本战前民法学说之继受。关于违约责任,民法通则及合同法均以不履行合同义务为核心要件,合同法违约责任体系并未继受德国2002年债法现代前给付不能、给付迟延及积极侵害债权之给付障碍三分体系,但学说均承认有所谓不完全履行。中国学者虽有从给付的“不完全”或是否符合债务本旨理解不完全履行,但此理解与以不履行合同义务为核心的违约责任体系不相吻合。
Incomplete payment has become the unwritten state of debt as stipulated in the Civil Code in Taiwan, and there are flawed payments and detrimental payments, both of which were inherited from Japan’s pre-war civil law doctrine. As to the responsibility of breach of contract, the general rules of civil law and the law of contract all take the non-fulfillment of contractual obligations as the core requirement, the contract liability breach of contract system has not been subjected to the three-part system of the disability payment, deferral of payment and aggression aggressively against the claims of Germany in 2002, However, the doctrine admits the so-called incomplete fulfillment. Although Chinese scholars do not fully fulfill their obligations of paying “incomplete” or complying with the essence of the debt, this understanding is not consistent with the system of liability for breach of contract centered on non-performance of contractual obligations.