合同自由的历史与未来

从历史上看,合同自由大体上经历了从确立、兴盛、衰落到复兴的过程。合同自由的变迁,蕴涵了深刻的历史背景,并以政治哲学和经济学理论的变迁为其基础。经历了否定之否定以后,合同自由将继续成为合同法上一个最重要、最基本的原则。如无充分且正当的理由,法律不应对合同自由加以限制。即使具备充分且正当的理由,法律也应当以防阻私人强制为目标,以私法性的强制为主要手段,以契约程序为规制重心。

The History and Future of Freedom of Contract

Viewed from the history,freedom of contract has experienced a process of establishing,flourishing,declining and reviving.The process contains profound historical background and is based on the changes of political philosophy and economics principles.After its negation of negation,freedom of contract will continue to be one of the most important and fundamental principles of contract laws.Without sufficient and justifiable reasons,the laws should not put limits on the freedom of contract and even if there had been sufficient and justifiable reasons,the laws should also,by main means of enforcing private-law attribute,aim at preventing private enforcement and set contract procedure as its regulation focus.