论意思自治原则与诚实信用原则的冲突

在现代民法中,一般而言,意思自治原则与诚实信用原则之间是相互协调的,它们共同作用共同指导着民事立法、司法等各项民事活动,但是在司法实践中,人们却又发现了它们之间发生冲突的情形。意思自治原则与诚实信用原则间存在着冲突的实质乃是民法基本原则内含的民法的价值间存在着冲突的可能性。本文从意思自治原则、诚实信用原则的含义入手,从功能上和司法适用两方面论述了公序良俗原则与意思自治原则存在着冲突。

An Analysis of the Disputation between the Principle of Autonomy of Will and the Disgraceful Consideration Principle

In general,in modern civil laws,the principle of will and the disgraceful consideration principle coordinated with each other,they influence each other and guide the civil legislation as well as judicial laws.However in the judicial practice,people have found that they are paradoxical with each other.The nature of the disputation between them is that there is much possibility of disputation among the values of the civil laws contained by the civil basic principles.In this article the writer chooses the implication of the principle of will and the disgraceful consideration principle as the starting point.In the function and judicial practice the writer argues that there widely exists disputation between them.