关于私法自治原则问题再思考

发布时间：2019-03-03 12:53

【摘要】：私法自治原则是民法的基本原则之一。私法自治原则,又称意思自治原则,是指法律确认民事主体可以自由的基于其意志去进行民事活动的基本原则。确认和保障民事主体的自由即就是私法自治原则的核心。根据私法自治原则,法律法规赋予和保障民事主体在一定范围内都具有去通过民事行为、特别是合同行为来调整民事主体之间的法律关系。对于民法基本原则来说,把私法自治原则与其他原则对比,就会发现私法自治原则其实是对应着自愿原则和禁止权力滥用原则而且私法自治原则在合同法中比较凸显。在我国《民法通则》中也有确认私法自治原则的相关规定,即民事活动应当遵循自愿原则。私法自治原则强调人与人之间的法律关系是由他们自己的意愿决定的,且受法律的保护。这种自由的体现,免受公权力的干扰,能够自己决定、处理事务。但是,私法自治并不是完全、绝对的,且民法上所确认与保障的意思自治也是受到限制的。并且,意思自治与其受到限制的问题也是民法中的一个重要问题。而能够充分的限制民事主体意思自治的就是国家利益和社会公共利益,并且是能够切实的为人民大众带来利益的国家利益和社会公共利益。
[Abstract]:The principle of autonomy in private law is one of the basic principles of civil law. The principle of autonomy in private law, also known as the principle of autonomy of will, refers to the basic principle that the civil subject is free to carry out civil activities on the basis of his will. Confirming and protecting the freedom of civil subject is the core of the principle of private law autonomy. According to the principle of autonomy of private law, laws and regulations give and protect the civil subject to adjust the legal relationship between the civil subjects through civil acts, especially contractual acts, to a certain extent. As far as the basic principles of civil law are concerned, comparing the principle of autonomy of private law with other principles, we will find that the principle of autonomy of private law corresponds to the principle of voluntary and prohibition of abuse of power, and the principle of autonomy of private law is more prominent in the contract law. In the General principles of Civil Law in China, there are also relevant provisions confirming the principle of autonomy in private law, that is, the voluntary principle should be followed in civil activities. The principle of autonomy in private law emphasizes that the legal relationship between people is determined by their own will and protected by the law. This freedom, free from interference with public power, is capable of making its own decisions and dealing with business. However, the autonomy of private law is not complete and absolute, and the autonomy of will recognized and guaranteed by civil law is also restricted. Moreover, the autonomy of will and its restriction is also an important issue in civil law. What can fully limit the autonomy of the civil subject is the national interest and the social public interest, and it is the national interest and the social public interest that can bring benefits to the people and the masses.
【作者单位】：营口职业技术学院;
【分类号】：D923.1

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