Autonomy And Restriction Of Contract

Autonomy of contract, which reflects the application in the field of contract of one of the three basic principles governing the modern private law - the principle of autonomy of the will (i.e. autonomy of private law), even regarded as the core of autonomy of will by some scholars, the autonomy of contract itself one plays an important role in the field of private law. Now the Chapter of Contract in the Chinese Civil Law Code is under discussion. How to understand the autonomy of contract correctly has the realistic significance in determining the contents of the autonomy of contract in the Chinese legal system. For such purpose, starting from the headstream of the thought of autonomy of contract to the establishment of the principle of autonomy of contract and analysis on the current status of the restrictions on the autonomy of contract in modern law, the paper tries to discuss about the autonomy of contract and the boundary of restrictions along the path of its creation, development and modification. The paper hopes to put forward the author's advices to the legislation of the autonomy of contract in China. This paper is composed of five chapters.Chapter one mainly introduces the meanings and content of autonomy of contract, and gives a definition of contract, autonomy and autonomy of contract discussed in the paper. Autonomy of contract is also called autonomy of agreement, which includes the understandings that a contract is the result of mutual consent between the parties and the formation of a contract is the result of free choice, as well as the holiness and relativity of contract. The autonomy of contract includes five kinds of autonomy as the autonomy of conclusion, the autonomy of the choice of counterpart, the autonomy of the content, the autonomy of the means of conclusion and the autonomy of modification, recession or termination.Chapter two is about the formation and evolution of autonomy of contract from ancient law to modern law. The thought of autonomy of contract is developed from the stipulation of consensual contract in the ancient Roman jus gentium, and the autonomy of will and form constitutes its basic contents. However, the economic basis of ancient Roman slavery system determined that the autonomy of contract is just a kind of autonomy enjoyed by the minority. The autonomy of contract in ancient Roman law was only a thought of agreement, which was not and was unable to be regarded as a principle of law. With the disappearance of Rome, autonomy of contract was just a kind of church protected the rank and statue. After the Middle Age, with the rise of renaissance of Roman law in Europe, together with the development and success of bourgeois revolution, autonomy was again related with contract and was developed from a thought of covenant in ancient Rome to the principle of modern civil law. The article also explored that the existed special material and theoretical foundations for the development of autonomy of contract in modern law and the establishment of its fundamental position.Chapter Three focuses on the restriction of autonomy of contract under the contemporary law and its reasons. Due to the dramatic social development and monopoly, in the 20th century, the principle of autonomy of contract confronts with huge challenges. The rise and development of format contract, the abuse of contract related with monopoly, and the damage on the interests of vulnerable group caused by the imbalance of the ability of contracting among parties, all of which can not be solved by the traditional theory of the autonomy of contract itself. Confronted with the above situation, many states began to take actions to limit the autonomy of contract, such as the stipulation of statutory obligations of conclusion, the restriction on the content of contract, the renaissance of the form of contract, special restrictions on special fields of labor contract and consumer contract in legislation; the restriction on autonomy of contract by the judges through flexible clauses such as good faith, public order and prohibition on the abuse of rights in judicature. Besides, some countries stipulate the administrative restrictions such as the contract management institutions.From the holy status to many restrictions, what is the reason for the change of the status of autonomy of contract? The paper points out that one reason is the change of the relationship between the autonomy of contract and the justice of contract. The truth that the contract is equal to justice in modern law can not be applied in any circumstances due to the forfeiture of the two preconditions named equality and interchange. The other reason is that change of legal standard and legislation mode from the individual standard to the society standard and from non-interference to active interference by states.Chapter Four focuses on the status of autonomy of contract under the contemporary contract law and its restriction on the autonomy of contract. Confronted with many restrictions on the autonomy of contract, some jurists pointed out that the autonomy of contract eclipsed and would die. The paper points out that there never exists any autonomy without restrictions, including the autonomy of contract. Absolute autonomy of contract never exists in history. Restriction on the autonomy of contract is not a negative deny to the autonomy of contract. Necessary restriction is the supplement and perfection of the autonomy of contract. The fundamental status of the autonomy of contract under modern law has not been changed yet. Meanwhile, the paper ponders on the latent damages and moderation of restrictions of the autonomy of contract. The paper also points out that as the legal basis of market economy system, the core psychology of autonomy of contract does not exclude any restrictions at all, but tries to cut down interferences. When there is no necessity to restrict the autonomy, it is necessary not to restrict the autonomy. Every special restriction shall be established on a more important social demand and thus could be proved to be legitimate. In the end, the paper discusses how to ensure the moderation of the restriction on the autonomy of contract.Chapter Five mainly discusses the contract autonomy under the current situation of PRC law and of the legislation mode for the contract autonomy principle. From the establishment of the New China, along with the development transferring from plan economy to market economy framework, the contract autonomy principal is recognized to some extent from restrictive criticism in its development in China. The statement of current effective Contract Law of 1999 and the General Civil Rules remains"Contractual Free Will"other than"Contract Autonomy". This paper points out that the free will of contract is distinguished from autonomy of contract in its content, legal view and legal spirit. And the free will of contract is unable to cover the real core value of the autonomy of contract—the civil autonomy thought that the mutual agreement of the parties can come into being the effect of law. Therefore, the free will of contract can not substitute the autonomy of contract. The paper points out that we need to definitely stipulate the basic status of the autonomy of contract and need to further make clear that for the autonomy of contract, no prohibition by law is equal to autonomy. Where there is no prohibition by the statutory laws, the autonomy of contract shall be protected. Only to those important matters and fields where necessary prohibitions are needed, the definite statutory regulations could be applied to set necessary prohibitions on the autonomy of contract. This is required by the development of socialism market economy and the construction of modern legality society. This is also necessary for China due to its lack of the tradition of autonomy and the lack of the edification by the autonomy idea of private law. In the end, the author puts forward the advice on the legislation of the autonomy of contract in China.