The so-called freedom of contract means that the parties enjoy the freedom to conclude a contract, choose the counterpart, choose the content of the contract, modify and terminate the contract and determine the mode of the contract according to law. In the contract law of western countries, freedom of contract is the most basic principle of contract law, a main thread running through contract law and the starting point of studying contract law. Therefore, we must deeply explore the meaning of freedom of contract; Specifically, freedom of contract includes the following five aspects:
(1) Freedom to conclude contracts
Refers to the freedom of both parties to choose whether to conclude a contract, which is the premise of determining the freedom of contract content. If the parties do not enjoy the freedom to conclude a contract, there is no question of freely deciding the contents of the contract.
(2) freedom to choose counterparts.
It means that the parties have the right to decide freely with whom to conclude a contract. This freedom can usually be included in the freedom to conclude a contract, but it can also be separated from it. For example, in modern society, there is no competition in some public utility service fields. When public utility organizations use their monopoly position to engage in transactions in the form of format contracts, consumers have no choice. In other words, it is difficult for them to enjoy the freedom to choose their contracting partners, but after all, they enjoy the freedom to conclude contracts. Therefore, in this sense, there is still a difference between the freedom to choose a contracting partner and the freedom to conclude a contract. It is this difference that makes us see that to truly realize this freedom, we must take the existence of a large number of participants in market transactions as the premise. Therefore, whether this freedom can be realized in market transactions depends on the existence of a fully competitive market.
(3) freedom to decide the contents of the contract
Refers to the specific terms in which both parties freely decide how to conclude a contract. In terms of freely determining the contents of the contract, the parties have the right to change the arbitrary provisions of the law through consultation, and at the same time, in addition to the well-known contracts stipulated by law, they can also conclude unknown contracts or mixed contracts. However, if the contents of the contract violate the mandatory provisions of laws and regulations and the requirements of social and public interests, it will be declared invalid.
(four) the freedom to change and terminate the contract
It means that after a contract is established through negotiation, the parties have the right to change the contents of the contract or terminate the contract. As mentioned above, the freedom of contract enjoyed by the parties first includes the freedom to conclude a contract and the freedom to decide the contents of the contract. Since the parties are free to conclude a contract, of course, they can also freely terminate the contract through consultation; The parties may decide the contents of the contract by themselves or change the contents of the contract through consultation. [2] Therefore, the freedom to modify and terminate the contract is also an integral part of the freedom of contract.
(5) Freedom to choose the way of contracting.
The form of concluding the contract is freely chosen by both parties. Ancient laws once paid great attention to the form and procedure of concluding contracts. For example, ancient Roman law made specific provisions on the ceremony of buying and selling, while modern law advocated freedom of form. With the rapid development of economic life, modern contract law pays more and more attention to the simplification, practicality, convenience and economy of transaction forms, thus adopting "no type as the principle and essential type as the exception" in the choice of contract methods. [3]
Second, the application of the principle of freedom of contract in China.
The principle of freedom of contract is people-oriented, and the principle of honesty and credit is society-oriented. The so-called honesty and credit, its original intention is to consciously act according to the principle of reciprocity in the market system.
(1) Obligations stipulated in the contract before the contract is established.
According to the traditional civil law, both parties assume mutual rights and obligations only after the contract is established. Modern contract law stipulates that "reasonable trust interest" has been formed between the two parties before the contract is established, from which corresponding collateral obligations such as cooperation, notification, attention, protection and confidentiality have been derived. [4] This collateral obligation is called pre-contract obligation at the stage of contract conclusion, and the party who violates this obligation shall bear the liability for negligence. Article 43 of the new "Contract Law" stipulates the confidentiality obligation as a typical pre-contract obligation, while article 42 stipulates the liability for contracting negligence.
(2) Provisions on incidental obligations during the performance of the contract.
Article 60 of the new contract law stipulates: "The parties shall fully perform their obligations as agreed." At the same time, it also stipulates: "The parties shall follow the principle of good faith and fulfill the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract."
(three) after the termination of the contract, the provisions of the post contract obligations.
Traditional civil law holds that after the termination of the contract, the rights and obligations between the parties are eliminated; Modern civil law based on the principle of good faith creates post-contractual obligations in order to better protect the interests of the parties. For example, Article 92 of the new contract law stipulates: "After the rights and obligations of a contract are terminated, the parties shall follow the principle of good faith and fulfill their obligations of notification, cooperation and confidentiality in accordance with trading habits." The principle of good faith effectively makes up for the deviation of contract freedom from contract justice. Therefore, the principle of good faith is regarded as the "imperial clause" and is observed.
Third, the restriction of the specific system on the principle of freedom of contract.
(1) Compulsory contracting
In the contract legislation, theories and precedents of all countries in the world, the implied terms, format terms and special requirements of contract format greatly restrict the principle of freedom of contract, and the emergence of compulsory contracting has the greatest impact on the traditional contract theory. Compulsory contracting means that an individual or enterprise has the obligation to respond to the request of the counterpart and conclude a contract with it. In other words, one party to a contract shall not refuse the other party's offer unless there is a legitimate reason. This makes one party to a contract obligated to make a commitment to the other party's offer, that is, the obligation to conclude a contract. This obligation is statutory, and it is the restriction of the freedom of contract by law.
In real life, compulsory contract restricts the freedom of contract in two different degrees. First of all, it limits the freedom of a party to conclude a contract, that is, it has no right to refuse an offer to conclude a contract. For example, compulsory contracting of public utilities, postal services, telecommunications, electricity, running water, railways, civil aviation, etc. , and shall not refuse the reasonable use requirements of customers or users. The second is to restrict the freedom to choose the other party, that is, once a party decides to conclude a contract, it has no right to choose the other party to the contract. For example, if the lessor sells the house, the lessee will make a purchase offer to him by virtue of the preemptive right. The former is called absolute compulsory contract, because in this case, the law directly stipulates the obligations that one party must bear when the other party makes an offer. The latter is called relative compulsory contract, because at this time, the law stipulates that one party has the obligation to promise the other party's offer only under certain conditions.
China implements a socialist market economy, which requires China not only to play the role of the law of market economy value, but also to implement state intervention and macro-control, to realize the optimal allocation of social resources and promote social and economic development. This is also the purpose of the state to restrict the freedom of contract through compulsory contracting. Due to the disparity in strength between major economic activities and the influence of information inequality; It is also because the parties first consider the maximization of personal interests when concluding a contract. As a result, it is likely to lead to disharmony between individual interests and between individual interests and social interests, hinder social and economic development, fail to realize the interests of the weak, and lead to social injustice. The state intervenes in the process of contract conclusion and the principle of freedom of contract, gives full play to the ability of social coordination and balance, and realizes the optimal allocation of social resources and the greatest fairness of society. China's civil and commercial law clearly stipulates the obligation of compulsory contracting. For example, Article 289 of the Contract Law stipulates: "A carrier engaged in public transport shall not refuse the usual and reasonable demands of passengers and shippers." Here, mandatory contracting obligations are stipulated for carriers engaged in public transport, mainly because these carriers often have a unique position and the services they provide are of the nature of public utilities. Passengers and shippers can't find other suitable parties to the contract except these carriers, that is, the parties to the contract have no freedom to choose each other. If these carriers are not forced to conclude contracts with passengers, it will lead to the disorder of the whole social order and the deformity of economic life, and it will be impossible to protect the weak and realize the fair and just role of society. This rule of compulsory contracting obligation has played a positive role in realizing social justice and meeting people's living needs. It has promoted the rapid development of modern economy and society.
(B) the standard contract system
The standard contract clause is a newly added rule clause in China's contract law. Its essence is to facilitate the conclusion of contracts, save transaction time and cost, standardize contract freedom, realize fairness and justice, and protect the interests of both parties. A standard contract, also known as a standard contract, generally refers to an agreement in which one party with specific conditions makes a fixed offer to the unspecified other party according to law, and all unspecified other parties accept it completely indiscriminately, so as to clarify the rights and obligations of both parties. Format contract is a special contract, which follows the general rules of contract law in terms of conclusion, performance, modification and termination. It also has its own characteristics: first, once the content of the standard contract is determined, it will apply to all unspecified other parties equally and indiscriminately, and no longer negotiate with the other party about the increase or decrease of the contract content; Second, the content and form of the format contract are relatively fixed and have greater stability. The other party has only two choices, namely, accept or reject. With the development of socialized mass production, mechanization and industrialization, and the expansion of commodity economy and market economy, standard contracts make many commodities adopt mechanized manufacturing and bulk trading. Due to the repeated use of various trading activities, some contract terms have gradually been fixed and evolved into today's standard contracts. Its appearance adapts to the needs of modern economic life and provides convenience for economic exchanges: 1. The format contract has simple procedures and fast flow, which conforms to the fast pace of modern life; Both parties do not need to spend more money and time to conclude the contents of the contract, but only need the other party who provides the format contract to review the contents of the format contract. The existence of this kind of contract makes the process of concluding a contract become a contract review process rather than a complicated contract formulation process, which effectively reduces the time and cost for both parties to sign a contract. At the same time, the other party shall examine whether the contents of the contract are legal, whether the relevant exemption clauses and liability clauses for breach of contract are appropriate, and whether the rights and obligations of both parties are clear, fair, feasible and actionable, so as to ensure fairness and equality of both parties and balance their interests. This format comes from the commercial practice of various economic entities and is often used in commercial trade and commercial services. Its provisions have few loopholes and can effectively protect the legitimate rights and interests of both parties. 13. As a form of offer, once the content of a standard contract is determined, it is relatively stable and cannot be changed by any unspecified other party. All the offerees who refuse the format contract enjoy equal rights and obligations in accordance with the provisions of the format contract, and all the counterparts are treated equally without discrimination, which can achieve social fairness and justice to a greater extent. This shows that this format contract is very suitable for the development of modern society. But in the process of development, it also exposed its own shortcomings.
The format contract mainly restricts the freedom of the other party to decide the contents of the contract. The provider of the standard contract has made the contract contents in advance, and the other party can only accept or reject the contract, but has no freedom to negotiate with the provider to modify the contract contents. This seems to limit the freedom of contract, but in fact it only limits the freedom of contract of the other party. The other party has no choice but to accept or reject the contract, which will lead to a form of justice. In fact, one party is subject to the other. Especially when one party has to buy the goods or services of the other party for living and production, and the format contract provided by the other party has clauses that are not conducive to the realization of its own interests, if it is not signed with the other party, it may not be worth the loss because of the long journey, increased expenses and increased costs. But only accept each other's standard contract. The author believes that this format contract is a form of concluding a contract gradually formed in international or domestic economic and trade exchanges, and the state has not interfered with the free behavior of the parties to the contract. Its essence still embodies the principle of party autonomy and is an affirmation of the principle of freedom of contract. However, this format contract is likely to become the performance of the strong controlling the weak. In the primitive period of free competition capitalism, the two parties with unequal strength had unlimited freedom of contract, but this injustice is becoming more intense in the monopoly stage. So in modern society, how to avoid this injustice, balance the interests of both parties and realize social fairness and justice to the greatest extent while implementing freedom of contract? The author believes that the law should regulate the standard contract, which is the only way. Moreover, some countries in Europe and America have successively passed legislation and precedents to intervene in the whole process of contract conclusion with mandatory clauses; Some countries also give judges discretion to determine the validity of standard contracts.
(3) Collateral obligations
The theory of collateral obligation originated in Germany and was accepted by legislation, precedents and theories of various countries. Its basic meaning is that in all stages of the development of contractual relationship, in addition to the obligation of payment, based on the principle of good faith, it aims to assist the parties to realize their interests and various obligations of notification, assistance, care, protection and confidentiality. Collateral obligation is manifested as the expansion of contractual obligation, which not only directly enters the contract without the will of the parties, but also serves as a part of contractual obligation; Moreover, the modern contract law has changed from only protecting the valid contract to adjusting the whole process of contract negotiation, conclusion, performance and termination, breaking through the traditional principle of freedom of contract, that is, the determination of contract content, that is, the rights and obligations of the parties to a contract must be agreed by both parties, otherwise it will be invalid. Especially since the middle of the 20th century, great changes have taken place in social and economic activities, with rapid economic development and rapid concentration of capital. It is absolutely unfair to all economic entities with great differences in strength to continue to implement absolute freedom of contract. Its so-called freedom of contract can only be an umbrella for bullying the weak, regardless of social evaluation, ethics, interests and substantive justice, and it is increasingly difficult to adapt to the needs of modern social development. [6] In the final analysis, the principle of freedom of contract is people-oriented, which encourages people to actively use contracts to realize their will and expands a broad space for giving full play to their personal abilities. How to realize both parties' own interests, but also realize the substantive justice of society, and the establishment of the principle of good faith will break the agreement principle based solely on the principle of freedom of contract or the relationship between the rights and obligations of both parties to the contract. The principle of good faith is based on society, pursues fairness and justice, requires people to realize their own personal interests on the premise of respecting the interests of others and society, and plays a guiding and limiting role in the principle of freedom of contract.
The combination of the principle of freedom of contract and the principle of honesty and credit has adapted to the new trend of modern society from individual standard to social standard, and the combination of value trend and social value trend. [7] While the principle of freedom of contract plays an active role in the market economy, it also brings many unreasonable phenomena, such as inequality, possible abuse of rights by the parties and intrigue. And the scenery is no longer because of the establishment of the principle of good faith. The principle of good faith not only requires people to be honest and not to cheat, but also requires people to abide by credit; What is more important is to maintain the balance of interests between the parties and between the parties and society, and to require the parties to realize their own personal interests on the premise of respecting the interests of others and society. According to the requirements of the principle of good faith, the parties not only need to perform the contract in accordance with the rights and obligations freely agreed by the parties, but also have to bear the incidental obligations arising from the progress of the contract beyond the contents freely agreed by both parties. Although the contract is not stipulated, the parties should still perform it, thus breaking through the requirements of the principle of freedom of contract and becoming a restriction and constraint on the principle of freedom of contract. Collateral obligation is established according to the principle of good faith, which is a breakthrough to the principle of freedom of contract and is of great significance to modern society. First of all, the contractual obligation extends from the agreed obligation to the collateral obligation, which makes the contractual obligation itself more perfect and the relationship between the rights and obligations of both parties more specific. Secondly, the appearance of collateral obligation has changed the traditional concept of freedom of contract, further improved the theory of contract law and made it operable. Thirdly, collateral obligation requires the parties to the contract to pay more attention to their obligations in the contract transaction, so as to maximize the purpose of the transaction and reach the expected purpose of concluding the contract; At the same time, it can protect the personal and property safety of the parties to the maximum extent. Finally, the development of collateral obligation can make the relationship between people more harmonious, the trading environment more fair and reasonable, promote trading and promote social and economic development.
Because the collateral obligation system based on the principle of good faith plays an important role in modern society, China, which is building a socialist market economy, is promoting the integration of China's economy with the world economy, so it is more necessary to formulate the collateral obligation system. At present, China's contract law has clearly stipulated the principle of good faith. Although the collateral obligation system is not clearly defined, the contractual obligation of concluding a contract first, the collateral obligation in performance and the contractual obligation after performance have been stipulated in the Contract Law respectively. [8] For example, one party has the obligation to inform about important matters involving interests: when concluding a loan contract, the borrower shall provide the true information about the business activities and financial situation related to the loan according to the requirements of the lender (Article 199 of the Contract Law). For another example, when one party performs the debt, it should reasonably consider the situation and subject matter of the other party, not only undertake the obligation to strictly perform its own contract, but also cooperate with the other party to perform its obligations; To undertake the obligation to provide convenience when assisting the other party to perform its obligations. Collateral obligation is a very active factor in modern contract law. In the process of vigorously promoting the construction of socialist market economy in China, the trading activities centered on contracts are becoming more and more frequent and complicated. Correctly understanding and grasping collateral obligations, attaching importance to and practicing collateral obligations will play a positive role in promoting transactions, developing the economy and further perfecting and developing the socialist market economy.
Fourthly, the application of the principle of freedom of contract abroad.
(A) from the perspective of historical development
In the west, the principle of freedom of contract has experienced a process from its peak to its decline. Freedom of contract means that the parties can freely conclude a contract according to their own wishes. That is, you can freely decide whether to conclude a contract, freely choose the object of concluding a contract, and freely agree on the content and form of the contract with the other party. A contract freely concluded between the parties is regarded as having legal effect, which is not only the basis for the parties to perform, but also the basis for the court's judgment and the arbitration institution's ruling. Freedom of contract is the reflection of the objective requirements of commodity economy in civil law, and the embryonic form of the principle of freedom of contract has been included in the first worldwide law of commodity producer society-Roman law.
In ancient Rome, there has been a special name-consensual contract. The consensual contract recognized by Roman civil law includes four types: sale, lease, partnership and appointment. [9]19th century, under the influence of French Annotation School and German pendleton School, absolute freedom of contract became the fundamental principle of modern contract law. In the process of forming the principle of freedom of contract, Adam? Smith's liberal economic thought provided him with the theoretical basis of economics, while the rational philosophy of 18- 19 century laid the philosophical foundation for him. The French Civil Code is recognized as the first modern civil code that clearly stipulates the principle of freedom of contract, while the German Civil Code, known as the "excellent legal computer", "makes the slogans such as freedom of contract and autonomy of the will that first appeared in France more fully rational", and the Anglo-American law has gradually formed a "pure contract theory" centered on consideration. In the period of free capitalism, the acquisition of raw materials, the circulation of commodities and the employment of workers must be through contracts. The establishment of the principle of freedom of contract not only ensures the effective operation and development of capitalist economy, but also ensures the safety of transactions, because the economic strength of the trading subjects at that time was not much different, and their economic status was relatively equal. The state can adopt a laissez-faire policy and allow them to sign contracts freely without causing a huge impact on the economic order. Serious social injustice occurs, and there is no significant difference in economic strength between the subjects, which is offset by frequent exchange of trading positions, thus making the transaction safe. [10] Therefore, freedom of contract is gradually recognized by United Nations legislation and becomes the basic principle of modern contract law. The principle of freedom of contract has shown great vitality in the period of free capitalism, and has achieved great success.
(B) Since the 20th century
The political and economic life of capitalist countries has undergone profound changes, and monopoly has become the fundamental feature of capitalist economy. The monopoly position of monopoly enterprises leads them to control the decision-making power of contract content, while other parties to the contract, such as non-monopoly enterprises, only have the freedom to "accept or leave", and the inequality of economic status leads to the injustice of contract results. Monopoly enterprises tend to cut production and raise prices for the purpose of maximizing profits, thus infringing on the public interests. Capitalist countries have to step up their intervention in economic life. In addition to macro-control measures such as planning, capitalist countries have also promulgated special laws and regulations such as Anti-Monopoly Law and Anti-Unfair Competition Law to maintain normal trading order. With the development of social welfare undertakings and the emergence of consumer groups, the complicated procedures for concluding contracts can no longer meet the needs of economic life, so there is a fixed contract, which has become a widely used trading tool in economic transactions because of its simple procedures, saving transaction costs and time and high efficiency. Fixed contracts in the United States account for more than 95% of the total contracts. Fixed contracts are not only to avoid the unfairness caused by separate contracts, but also to create new social unfairness. The drafter of a fixed contract can write clauses that are unfavorable to the other party of the contract into the contract, so that its interests are infringed. Therefore, all countries regulate unfair contract terms by legislation, and the principle of good faith and contract justice have regained their due position in contract law, and a series of new contract law norms have emerged. The widespread adoption of fixed contracts makes the counterpart of the contract lose the freedom to determine the content of the contract and choose the form of the contract. The regulation of unfair contract terms by legislation limits the freedom rights of the drafters of fixed contracts and seriously damages the principle of freedom of contract. In view of the decline of the principle of freedom of contract in modern contract law, 1974, the famous American jurist Grant? Guilmault published the book "Death of Contract", claiming that the contract is as dead as God. [1 1] In fact, the so-called "death of contract" is just a classical contract concept and contract law founded by Japanese jurist Hideyoshi Hoshino in the 20th century, which is undergoing major changes in modern times. The slogan of decline and death mentioned above is the expression of this general trend change. The reason why the principle of freedom of contract has declined from its peak is to safeguard social justice and transaction safety, and to adapt the contract law to the needs of social and economic development.
Since1970s.
Based on the revival of new economic liberalism and the re-emphasis on the principle of freedom of contract, it is in line with the world trend to demonstrate that the principle of freedom of contract should become the first principle of contract law in China. There is a neo-liberal school in western economics, but the decline of the principle of freedom of contract in modern contract law is a well-known fact. Regarding neoliberalism, Professor Lin Gang pointed out that some people in China blindly worship western economics:
Some people even openly worship Hayek's and Friedman's neo-liberal theories with distinctive anti-socialist colors, and tout the "reform theory", which is a typical example of the growth of this erroneous trend of thought. The late Professor Chen Daisun also wrote an article before his death: "In this era, the mainstream school of western economics can only be the school of state interventionism, not the school of neoliberalism." The western neo-liberal economic trend of thought advocates laissez-faire and opposes state intervention, which does not conform to the trend of the times and has little influence on the economic policies of western countries. Therefore, based on the neo-liberal school of western economics, it is inappropriate to raise the principle of freedom of contract to an inappropriate position, and it is even more unfounded to claim that the principle of freedom of contract should become the primary principle of China's contract law with the so-called "the principle of freedom of contract is once again valued".
My opinion on the application of the principle of freedom of contract of verb (abbreviation of verb) in China
(A) from the China market economy system.
What China wants to build is a socialist market economic system. The socialist nature of China's economic system does not allow excessive promotion of the position of the principle of freedom of contract in contract law. In order to correct "market failure", protect the weak in trading, realize fair trading and safeguard social interests, the state must intervene in economic life and restrict freedom of contract to ensure the healthy development of China's market economy. Accurately determining the status of freedom of contract and restricting the principle of freedom of contract are important manifestations of macro-control by legal means in the field of contract law. It can be said that without freedom of contract, there will be no real market economy, and there will be no rapid economic development and high efficiency. Without state intervention, unilaterally improving the status of the principle of freedom of contract will hinder the healthy development of the market economy and the realization of economic development and high efficiency. America is a country with a highly developed market economy. "However, from the beginning, the US government never allowed the free development of the market economy. On the contrary, in order to overcome various problems in economic development and accelerate economic development, the US government has taken strong non-market economic intervention measures to control economic development. " It can be seen that freedom of contract and state intervention are the relationship of unity of opposites, and they cannot be neglected.
(B) from the current economic level of China.
China is in the historical period of establishing and perfecting a mature and dynamic socialist market economic system, and the behavior of market subjects needs to be standardized urgently. In order to ensure the normal trading order and safeguard the legitimate rights and interests of the parties, it is necessary to strengthen state intervention and limit the principle of freedom of contract. For example, restricting the freedom of the parties to a contract to choose the form of the contract, whether taking the written form as an important requirement for the effective establishment of the contract or as an evidence requirement, is of positive significance for determining the rights and obligations of the parties, preventing disputes, reducing unnecessary disputes and maintaining the normal trading order. Since the middle of the 20th century, there has been a revival of contract formalism in western countries. Some contracts (especially those transferring the ownership of real estate) need to be announced, otherwise they may not be able to confront a third party. "... and why do we advocate" not stipulating the legal form of the contract, so that the parties have the freedom to choose the form of the contract "in the process of formulating the unified contract law? Learning from others is not only not combining with your own reality, but also not really learning from others.
(C) from the level of productivity in China.
The development level of China's productive forces also determines that the position of the principle of freedom of contract should not be raised to an inappropriate level. Today, the principle of freedom of contract has declined in western countries, and we should not upgrade its status. The position of the principle of freedom of contract can be reflected by its relationship with other basic principles of contract law. Scholars have different opinions on what basic principles should be included in contract law. The author intends to reveal the positioning of the principle of freedom of contract through the positioning of the principles of good faith, fairness and their relationship with the principle of freedom of contract, which are recognized by most scholars.