Freedom Of Contract Doctrine--To Search Approach To Realize And Restrict

In 20th century, it is inevitable for freedom of contract doctrine to decline, our contract law came forth at that time, decline of freedom of contract doctrine can be found in it, in fact, freedom of contract doctrine has not declined, only its approach of realization and restriction has not been perfected.My paper tries to find out approach to realize and restrict freedom of contract doctrine, according to two centuries' axiom of freedom of contract doctrine. Above all, through discussing divisional criterion of contract and non-contract among French, Germany and countries that belong to Anglo-American law system, sums up approach to realize freedom of contract doctrine in 19th century, at the beginning of 20th century, approach to realize freedom of contract doctrine in most countries had a common characteristic-to realize or try to realize freedom of contract through contractual relation, but there are still some deficiencies and illogicalities in existing theory. Next, my paper discusses approach to restrict freedom of contract doctrine. Firstly, clarifies the restriction of freedom of contract is only a problem of understanding, freedom of contract doctrine in 19th century has already been restricted; Secondly, contractual justice has not changed essentially, it is not substantive justice but formal justice, putting into specific historical stage, the expansion and restriction of freedom of contract are at the same time under the same condition, the extent of the restriction between modem and foregone freedom of contract doctrine can not be compared, and modem formal contractual justice can not replace freedom of contract doctrine, it can only be treated as a restriction of freedom of contract doctrine. Chinese scholars should understand it deeply, and China should prescribe restriction of freedom of contract doctrine systematically; Thirdly, in face of good faith doctrine, what course to follow for freedom of contract doctrine is a fashionable problem, through distinguishing judicial logos and legislative logos between two law systems, figures good faith doctrine falls short of Chinese legislative logos, it can not be adopted in Chinese legislation of restriction of freedom of contract doctrine and is unnecessary to be put in contract law, clarifies restriction of freedom of contract doctrine plays important role in the improvement of theory of contractual relation. At last, my paper gives suggestions on how to solve approach to realize and restrict freedom of contract doctrine, figures the existing theory only solves parts of the problem, forming contractual relation in a broad sense is a ultimate approach to realize and restrict freedom of contract doctrine.