论契约自由与公序良俗之关系

On the relationship between contractual freedom and public order and good customs

契约自由与公序良俗均有着内生的扩张动力,历史地观察,两者总体上呈现出此消彼长的相互关系。不过,两者的总体性趋势是融合生长,相互协调,相互保障,你中有我,我中有你。现阶段我国契约自由和公序良俗之关系较为紧张,且在不同领域中存在差别。调试两者的关系应当采取趋势性双向调节方案:在基础性民事关系领域,国家应当加大精神文明和道德文明建设;在商事经济关系领域,国家应当利用市场的资源配置作用;在金融等专业关系领域,国家应当借鉴西方经验,矫正市场主体间完全不对等不平等的现状。

The freedom of co ntract and public order and good customs both have endogenous expansionary motives. Observed historically, the two have generally shown mutual relations. However, the overall trend of the two is the integration of growth, mutual coordination, mutual protection. At the present stage, the relationship between the freedom of contract and public order and good customs in China is relatively tense and there are differences in different fields. To adjust the relationship between the two, a two-way adjustment plan should be adopted. In the field of basic civil relations, the state should increase the construction of spiritual civilization and moral civilization; in the field of commercial economic relations,the state should allocate resources by the hands of the market; in the field of professional relations, countries should absorb Western experiences and correct the current situation of total inequality between market players.