契约自由的复兴及原因

The Revival of Freedom of Contractand the Cause

契约自由的衰落曾被认为是西方法律传统危机的重要一面。时至今日,契约自由在民法上的复兴与扩展如拨开云雾重见天日一般清晰起来。从宏观上看契约自由历史演进的规律是曲折而向前演进的,从微观看,契约自由并不必然导致议价能力不平等或交易不公平,要理顺契约自由与保护弱势群体权益的关系。再从人格权法、公司法、劳动法、家庭法四个方面阐释了契约自由的扩展。最后指出契约自由的复兴与扩展的原因是社会阶层分化后多元化社会中力量对比的反映和妥协的合理产物,也是人们更为信仰自主选择的权利的表现。还要指出,契约自由的复兴与扩展,是有机结合法学与各个学科在契约自由理念上的观点来进行的。

The decline of contract freedom was considered to be an important aspect of the crisis of the western legal tradition. Today, the revival and the extensions of the freedom of contract in the civil law are becoming clear such as the clouds are cleared. From the macroscopic view, the evolution history of the freedom of contract is tortuous and evolving forward From the micro view, the freedom of contract does not necessarily lead to the unequal bargaining power or unfair trade. It needs to straighten out the relationship between the freedom of contract and the protection of the rights and interests of the vulnerable groups. The paper explains the extension of the freedom of contract from the four aspects of the personality right law, the company law, the labor law and the family law. Finally, the paper points out that the cause of the revival and the expansion of the freedom of contract is the reasonable product of the reflection and compromise of the forces contrast of the pluralistic society after the social stratum differentiation, also the performance of people increasingly believing the right to make independent choices. It should also be pointed out that the revival and the expansion of freedom of con- tract is the organic combination of the law and various disciplines in the concept of the freedom of contract.