View On Establishment And Development Of Freedom Of Contract And Its Application In Chinese Civil And Commercial Law

Freedom of contract is one of the core principles of Roman law as therepresentative of private law. The thinking of freedom of contract arises from theemergence of the contractual contract of the Roman ius gentium. The Freedom ofContract appears in the late Middle Ages in Europe and Roman law renaissance, andis also one of the most important principle in the modern Civil and Commercial Law.The freedom of contract covers a wealth of content, which including freedom ofconcluding a treaty, the freedom to choose the relative, freedom of contract content,free-form of concluding a treaty, surrender freedom, and so on. With the effect of thespecific historical background of the19th century, the economic development of thecapitalist, the bourgeois representative political system, the social thought ofhumanistic natural law school, legal system and other factors, The freedom ofcontract in France, Germany, the United States and other countries can be written intolaw and continue development. It can be said that the19th and20th century is thecentury of the contract. The freedom of contract becomes one of the most attractiveand the most important principles in the system of private law.Back to the history of the Chinese Civil and Commercial Law, the ancientChinese also form a unique set of contractual system.Freedom of contract in the form of society ruled by the feudal system and theclan system is subject to the economic and political system. Therefore, freedom ofcontract can only play a role in the smaller areas.In modern China, because of the imperialist invasion, the gradual disintegrationof the natural economy and the spread of the ideas of democracy and freedom, theQing government began to learn from the West advanced knowledge and technology,especially the modern legal system revision and the Western legal system. Thus theprinciple of freedom of contract began to be introduced to the modern Chinese Civiland Commercial Law. The freedom of contract plays a crucial role in thedevelopment of the modern Western Civil and Commercial Law, and also has thefar-reaching impact on modern Chinese Civil and Commercial Law. In the literature review study, many scholars research into the content, thepremise, the conditions and the value of freedom of contract, and the spirit of thefreedom of contract in China. Some scholars have studied the manifestation of thefreedom of contract in contract law. However, the systematic study on theestablishment of the freedom of contract in the Chinese Civil and Commercial is rare.Therefore, this article clarifies the meaning of the principle of freedom of contractfrom the development of the freedom of contract, grasps the conditions of freedom ofcontract and its establishment in positive law, and then explores the establishment anddevelopment of the freedom of contract in modern Chinese Commercial Law.Through the systematic study of the freedom of contract, especially the readingof classical literature, this paper study the core problem which is the freedom ofcontract how to break through the restrictions and hinder of system, and then beconfirmed and developed in many Civil and Commercial Law Drafts such as "QingCivil Law Draft ","Qing Commercial Law Draft", and so on.The innovation of this paper is the clear discovery of the establishment anddevelopment of the freedom of contract in modern Chinese through the research ofprotection law in the classical modern Chinese Civil and Commercial Law.