论契约自由原则的发展及其动因

On the Development of the Principle of Contract Freedom and Its Motivation

"契约自由是合同法的灵魂和生命。"它发源于罗马法,确立于资本主义自由竞争时期。进入20世纪后,随着其产生之社会基础的变化,各国普遍对契约自由给予一定的规制,以实现实质意义上的契约公正。从契约自由原则的兴起、确立及现代社会对其的规制,宏观把握契约自由原则发展的历史进程,并洞见其发展动因。

＂The freedom of contract is the soul and life of contract.＂ This principle originated in Rome law and established during the period of capitalist free competition. Since the 20th century, the social foundation has changed. In order to realize the contract fairness in essence, many countries have made regulations on the freedom of coritract. This paper discusses the emergence, establishment of the principle of contract freedom, the regulations in modern society, and thus to maeroscopically grasp the developing process of this principle in history and explore into its developing motivation.