On Autonomy of Will and Protection of Trust Interests

China's General Principles of Civil Law (1986) stipulates the liability for breach of contract as follows: If a party fails to perform its contractual obligations or fails to perform its contractual obligations, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. The western school of legal and economic analysis believes that if the defaulting party still has a surplus or income after compensating the other party for the expected loss of interest, then it should breach the contract. Another view is that it is inappropriate to continue to perform the contract as a remedy for breach of contract. China's regulations aim at protecting the trust interests of the counterpart of the contract, while the central idea of the school of economic analysis is to seek interests, that is, in order to obtain more favorable interests for yourself, you can perform the contract based on your own will without being accused by law. Through the comparative analysis of these two concepts, this paper discusses the influence of autonomy of will on contract performance and protection of trust interests.

Keywords: autonomy of will, change of trust interest contract

First, the exploration of autonomy of will.

1, the content of autonomy of will

Autonomy of will means that civil subjects can form their rights and obligations in private law by expressing their own will. Including the establishment, alteration and termination of rights and obligations. It runs through the whole civil law system together with the principles of equality, fairness, honesty and credit, public order and good customs. Article 85 of General Principles of Civil Law of People's Republic of China (PRC): A contract is an agreement between the parties to establish, change and terminate a civil relationship. Contracts established according to law are protected by law. Article 2 of People's Republic of China (PRC) Contract Law: A contract is an agreement between natural persons, legal persons and other organizations with equal subjects to establish, change and terminate civil rights and obligations. Other laws shall apply to the agreements on identity relations such as marriage, adoption and guardianship. These laws all embody the principle of autonomy of the will.

In principle, the state does not directly intervene. Only when the dispute between the parties cannot be resolved through consultation can the state intervene. Generally, the judgment is made by the judicial organ or the arbitration organ. The essence is to respect the free choice of civil subjects, which is embodied in the freedom of contract.

2. The historical development of the autonomy of the will.

It can be said that the origin of autonomy of will can be seen from Roman law, for example, the theory of civil society is his foundation. It was clearly put forward by French jurist Charlie Dumelin. The principle of autonomy of will has been fully embodied in the French Civil Code, and has become the most important basic principle of contract law, not limited to the scope of contract law. Together with the idea of individual standard and supremacy of rights, it has become the theoretical pillar and cornerstone of private law system in the period of self-owned capitalism.

3. Views of Economic Analysis Law School on Liability for Breach of Contract

From the perspective of private law, the autonomy of will is the autonomy of private law, which can be understood as the establishment, modification and termination of a contract based on one's true intention in China's contract law, without interference and coercion from others. Under the condition of not violating the law, the agreement voluntarily reached by the subjects of private law takes precedence over private law and applies. Specifically, it can be divided into freedom of contracting, freedom of performance, autonomy of content, autonomy of form and autonomy of remedy for breach of contract. This involves the viewpoint of the school of economic analysis mentioned in my abstract. Judge Bonama, the representative of this school, said in a trial: "Even if the breach of contract is intentional, it may not be punished, and the promisor may find his promise more valuable to the third party. If this is the case, as long as he compensates the actual loss of the other party to the contract, then he should be allowed to violate the original promise, which is a promotion of social interests. "

This is closely related to the social trend at that time. The rapid development of capitalism is based on the pursuit of maximum benefits. It is not in line with the essence of market economy to gain less benefits but lose more benefits in order to comply with the performance of the contract.

However, there are different views on whether actual performance should be a remedy for breach of contract. The general principles of China's civil law are affirmative, while some western jurists who attach importance to "human harmony" hold the opposite opinion. They believe that it is neither economical nor realistic to force the defaulting party to continue to perform the contract that he does not want to continue to perform. Because the possibility of a second breach of contract is very high, it will be accompanied by a second lawsuit, which will greatly limit the development of the market economy, because time is money, and the speed of capital flow determines the harvest of interests. It basically limits the freedom of will of the defaulter. China courts usually make the defaulting party reluctant to continue to cooperate with each other. With the last unpleasant experience, the gap between the two sides is quite large, and the prospect of contract performance is not optimistic. Our country's position is to protect the trust interests of the counterpart, so there is such a provision. Because some contracts can not only make the observant party get the expected benefits through monetary compensation, such as lease contracts and transportation contracts.

Second, the exploration of trust interests.

1, the definition of trust interest

Trust interest refers to the interest generated by one party based on reasonable trust that the other party will conclude a contract with it. When we conclude a contract, we all have our own expected interest goals, and the significance of fulfilling the contract lies in realizing this goal, thus turning the interests into reality. If the contract is violated, not performed or not performed correctly, this expected benefit will be damaged. The observant party may claim compensation from the breaching party according to the losses suffered. In addition, the liability for contracting negligence is also based on this trust interest, and one of the constitutive requirements is that "the act of violating the statutory collateral obligation or the pre-contract obligation has caused the loss of trust interest to the other party. Without loss, there is no compensation problem, and the so-called loss of reliance interest refers to the loss of interest suffered by the counterpart because he believes that the contract will be effectively established but the contract is not established or invalid. This trust interest must be based on reasonable trust, that is, at the contracting stage, one party's behavior has convinced the other party that the contract can be established or effective. If you can't trust the establishment or entry into force of the contract from objective facts, even if you have paid a lot of fees, this is caused by the contractor's own misjudgment and cannot be considered as the loss of trust interests. "

2. Typical gift contract

According to the principle of Anglo-American law, the contract without consideration can also be executed according to the trust interest, and the gift contract without consideration can be turned into an executable contract and protected by the court. The premise is that the promisee gives trust to the promise of the gift and implements the act of trust. Article 186 of China's Contract Law restricts the donor from canceling the gift contract, including the gift contract with the nature of social welfare and moral obligation such as disaster relief and poverty alleviation or the notarized gift contract. Article 188 stipulates that if the donor fails to deliver the donated property in accordance with the above-mentioned gift contract, the donee may request delivery. This provision is similar to the relevant theories of Anglo-American law. The original intention of legislation is to protect the trust interests of the donee from loss.

However, according to Article 186 of the Contract Law, the donor may revoke the gift before the transfer of the right to the donated property. The starting point of this legislation is to protect the autonomy of donors. But it can be revoked on the premise that the promised counterpart is not damaged. For example, the injured person quit his job in order to accept the property donated by the donor. It can be said that the relevant provisions of the gift contract are typical efforts made by legislative technology to find a balance between protecting trust interests and freedom of will.

3. Case analysis

A more intuitive real case is more conducive to our understanding of the status of trust interests. The plaintiff, Li, found that her husband was having an affair with her sister, Li, and was so angry that she was ill and hospitalized. Li Xiaomou promised to compensate his sister for mental damage of 80,000 yuan. At that time, the two sides signed relevant agreements. It's just that Li Xiaomou went back on his word when he fulfilled 5000 yuan of it. Li was very angry and took his sister to court. Li Xiaomou also filed a counterclaim, which was rejected by the court. Some people think that the extramarital affair between the defendant and the plaintiff's ex-husband violates ethics and should be condemned by moral public opinion. Therefore, the behavior of promising to compensate the plaintiff's mental loss is a natural debt because it is not included in the current adjustment scope of our country, and it does not have the nature of legal compulsory protection. If the defendant is unwilling to perform, the plaintiff can't do anything to her, which has no legal support. I think people who hold this view ignore the issue of trust interests. In this case, if my sister accepted 80,000 yuan of compensation for her sister's mental damage without any additional conditions, including divorce by agreement, and she chose to accept compensation to get spiritual comfort, it can be said that it not only saved the face of her husband and sister, but also made a good parting for everyone. In fact, it is based on the trust of my sister's commitment, which can be said to be a good development trend. But my sister didn't act as promised, which aggravated the blow to her. It is unfair to allow this kind of breach of contract to happen and even admit its legitimacy. The final judgment of the court is also to protect the plaintiff's trust interests. It can be seen that trust interest is an important viewpoint in the contemporary civil law system.

Third, how to seek the balance between trust interests and autonomy of will.

From the above comprehensive analysis, we can draw such a conclusion. There are contradictions and conflicts between the protection of trust interests and the autonomy of will in the legislative technology of civil law. Especially in contract law.

Autonomy of the will is the legislative basis of contract law, and it also runs through the whole civil law system as a basic principle. Civil law certainly needs to protect it deeply. It can be said that autonomy of will is the soul of contract law. Protecting autonomy of will is beneficial to the rapid development of contract law and even the whole civil law. The practical significance is that China is currently in the primary stage of socialism. In order to develop the socialist market economy, if we can better allow freedom of will and freedom of contract and reduce government intervention, we will actively mobilize the enthusiasm of market operators, then the prosperity of the market will inevitably greatly enrich the theoretical theory in this field, and this future can be said to be relatively bright. While the market is booming, it also increases the possibility of market chaos. As we all know, the market economy is lagging behind, spontaneous and blind. It is impossible to blindly pursue freedom without government control, and an absolutely liberalized market economy will inevitably bring predictable bad results. The Great Depression of 1930s is a good proof. Another problem is that if the school of economic analysis is allowed to refuse to perform the contract that has come into effect in order to pursue greater interests, the market subject will become lack of trust and security, which is not conducive to the long-term development of the market economy. Therefore, I believe that while promoting freedom of will, we should properly maintain the guiding role of the government. As mentioned earlier, reducing government intervention refers to some unnecessary arbitrary intervention, which can appropriately relax the restrictions on enterprise registration and listing transactions and lower the threshold. Looking at the protection of trust interests again, it can be seen from Article 186 of the Contract Law that the premise of party autonomy protection is not to infringe on the trust interests of the counterpart. So can we conclude that the premise of protecting freedom of will is not to violate the relevant provisions of the law, not to harm national interests, social welfare and the legitimate rights and interests of others, not to violate public order and good customs, and to follow the principle of good faith? This means that freedom is flawless.

Finally, I think the future legislation should improve the protection of the autonomy of the will, as long as it does not violate the minimum that harms the trust interests of others. For example, we can make different provisions on the liability for breach of contract according to the actual situation, and we can follow the theory of economic analysis school for those contracts that can make up the losses of the observant party in the form of monetary compensation. Moreover, both parties can appropriately increase the amount of compensation through consultation. At this time, the real meaning of compensation becomes benefit sharing, which is beneficial to both sides. For the contract that must be performed in order to achieve the expected benefits, it can still be solved by continuing to perform the contract in accordance with the original regulations.

References: General Principles of Civil Law, Laws and Regulations on Examination for Law Students, Frontier Research on Legal Practice in Peking University.