中国传统契约制度新探——以契约自由观念为视角的解读

Exploration of China's Traditional Contract System——From the Perspective of Concept of Freedom of Contract

从西周至清末,中国传统契约制度形成了独具特色并高度发达的制度体系,但中国传统契约在缔约形式方面、缔约主体方面和契约内容等方面受到重重羁绊与束缚,从而无以养成负载现代契约精神的契约自由原则。但中国传统契约注重缔结契约双方的"和同"原则,蕴含了契约自由思想的质素,与近代西方民法中的"契约自由原则"潜在契合,为近代中国民法继受契约自由原则提供了本土资源支持。

From Xizhou dynasty to late Qing dynasty, China＇ s traditional contract system went through 2000 years of evolution and accordingly developed a unique and highly developed contract system. However, China＇ s traditional contract system has not breed out the principle of freedom of contract as it has been fettered by many traditional factors. At the same time, China＇ s traditional contract system attachs importance to the agreements of the two sides of the contract which provide the resources to support the civil law of late China transplant the principle of freedom of contract.