The Speculation On The Development Of The Freedom Of Contract In The Views Of Contractual Justice

The freedom of contract, as an idea, is the pioneer of the movement of "from the status to the contract"; as a matter of principle, is the core and the soul of the contract law. And the influence of the contractual justice to the freedom of contract is through the development of contract law has always been. From the Ancient Rome implicated the thought of the freedom of contract, she experiences the darkness of the Middle Ages, the tide of the Renaissance, the waves of Bourgeois Revolution, the capitalist economic crisis, and the state intervention. The freedom of contract and the contract law are the same destiny and they develop together. And whether popular or fade, the contractual justice plays the role of judgment and decision in the background.This article is divided into four main parts. The preface briefly introduces the emergence and the development of freedom of contract, and gives the brief illumination to the domestic and foreign research present situation as well as this article research technique and the research significance.The first part mainly describes the freedom of contract from idea's source to the system is established, mainly demonstrates the establishment of the principle of freedom of contract in the modern civil law is the inherent requirement of the contractual justice. This part on the base of defining the meaning of the principle of freedom of contract, and analyzes how the idea of freedom of contract to get up, and then describes that the freedom of contract as a principle of modern civil law to establish in the Two Legal systems, and analyzes the establishment of the theory, the economy and the political basis, and briefly outline the principle of freedom of contract to the modern civil law's value and the significance, and pointed out that the principle of freedom of contract is the core and soul of the modern civil law. At last of the first part, the author elaborates the contractual justice's meaning, and pointed out that it cannot separate the principle of freedom of contract's establishment and prosperity in the modern civil law from the contractual justice, and therefore the contractual justice and the freedom of contract in modern civil law has been held sacred by collaboration.The part two and part three analyses one question that when the contract formal justice changes the substantial justice, what's the influence it will make. the second part mainly describes the confusion of the principle of freedom of contract in the modern civil law, and pointed out that in the modern civil law the freedom of contract has gradually deviated from the contractual justice, and in turn leads to contractual substantial justice to make the limitation to the principle of freedom of contract. The part three firstly throughout the basic trend of the modern civil law, and then carries on the proof from the legislation and the judicial two angles to discuss the means to the limitation to the principle of freedom of contract. The third part of the part three is the paragraph that indicates the author standpoint, by summarizing the relation between the contractual justice and the freedom of contract, the author points out that the principle of freedom of contract which decline in the modern civil law, is not really decline, though it has been limited, in the modern contract law and even the modern civil law it still is an important basic principle, ,freedom desired is still the soul of the contract. The freedom of contract, the meaning autonomous, is the civil law eternal topic.The part four mainly elaborates the freedom of contract in our country's localization. In the realistic background that the civil law's system already relatively perfect but civil law's spirit actually far popularization, the principle of freedom of contract in our country still has a long way to go. The author selects the representative three questions to analyze, and then points out that he hopes that through the analysis of the principle of freedom of contract cause our country to be aware of the importance of thinking of private law, and respect for the spirit of private law.At the basis of previous studies, the author uses vertical and horizontal research techniques, unifies the contractual justice's crosswise judgment and the freedom of contract's longitudinal development, the aim of writing this article is trying to discuss the principle of freedom of contract to expect to benefit for the idea of freedom of contract at the spread of our country. But because the author has little talent and learning, and may many opinions haven't been argued adequately, so the article only wants to throw out a brick to attract a jade, excepting the emergence of the criticism and point out my mistakes.