摘要
契约自由是建立在法律人格平等和自由理性之尊重基础上的合同法的基本原则,学者所言契约之死和所谓契约自由原则之衰落,无非是从古典的人格和理性的抽象平等向更注重人格和理性的差异平等转化而已,但对理性与平等之尊重始终为契约自由之理论基础。这是由市民社会之商品经济基础所决定的。我国缺乏私法传统及发展商品经济之现状决定应在合同法中高举契约自由的大纛,保障民事主体自立、自主和自决之自由。
The freedom of contract is the fundamental of contract law, which is based on the juridical personality equality and the freedom of contract. The so-called die of contract and decline of the principle of the freedom of contract, actually is that the abstract equality of classical personality and reason changes into the differential equality that thinks much of personality and reason. However, to give much regard to reason and equality is always the academic fundamental of the freedom of contract. This lies on commodity economic base of civic society. As the result of the absence of the history of private-law and the status of commodity economy in our country,we must advocate the freedom of contract and ensure the civil body抯 freedom of self-determination ,self-support and independence.
