(A) the concept and connotation of the basic principles of contract law
Legal principle refers to the general guiding ideology and fundamental legal norms of the whole legal activities, including legislation, judicature, law enforcement and law-abiding. It is a value criterion stored in legal provisions, not the legal provisions themselves. It does not directly contain the facts of the case, but must be borne by legal provisions or laws. However, there is no clear and direct statement about this kind of load. Direct declaration is only a way to determine some legal principles, but most legal principles must be deduced from legal provisions by overall analogy or returning to legislative reasons.
The same-sex values that run through the highest level of a certain kind of law can be called the basic principles of this kind of law. Specific to the basic principles of contract law, it refers to the value criterion that runs through the whole contract law system and norms, is the concentrated expression of the essence and basic spirit of contract law, and is the starting point for formulating, interpreting, implementing and studying contract law.
(B) the establishment of the basic principles of contract law
Since the basic principle of contract law is the highest value criterion of contract law, it should be combined with the content and function of the whole contract law, which should not only apply to the whole contract law norms, but also reflect the basic value of contract law; The basic principles of other laws, especially the basic principles of its superior civil law, cannot be used as the basic principles of contract law and will not reflect its particularity. At the same time, the specific legal principles applicable to a certain contract system cannot be used as the basic principles of contract law, which will lose its value-bearing function.
Therefore, I think the basic principles of contract law should be freedom of contract, honesty and credit and encouraging transactions.
1, freedom of contract, also known as freedom of contract, came into being as early as Roman law. The stipulation of promise contract in the legal ladder has basically included the concept of modern contract freedom. But it is only an idea, and it is only embodied in the form of an agreed contract, and it does not constitute a basic principle of the Roman contract system.
/kloc-since the 0/5th century, capitalist relations of production have gradually formed, individuals have gradually got rid of the direct fetters of feudalism, geography and autocracy and become free and equal commodity producers, thus realizing the "movement from identity to contract" and the idea of freedom of contract has been widely spread. At the same time, the specific economic, political, ideological and cultural background provided conditions for the establishment of the principle of freedom of contract in the 19th century. At this time, freedom of contract, as a basic principle, is gradually established by laws of various countries.
From the history of this principle, the principle of freedom of contract is the inevitable requirement of commodity economy and even market economy. The more frequent the economic activities between market entities, the more prosperous the whole market economy will be. The economic activities between market entities are essentially the process of contract conclusion, performance and elimination, and the transactions between market entities are contractual relations. Therefore, contract law is also called transaction law in common law. Freedom of trade inevitably requires freedom of contract.
2. The principle of good faith originated from Roman law. In Roman law, there is the concept of "good faith", which stipulates "good faith contract". According to the "good faith contract", the debtor should not only bear the obligations stipulated in the contract, but also bear the supplementary obligations of good faith.
The principle of good faith is the basic principle of civil law. The reason why it is established as the basic principle of contract law lies in: (1) The principle of good faith in civil law is embodied in contract law, from the conclusion, establishment, performance and obligations after performance of a contract to the assumption of liability for breach of contract; (2) The contract law has further requirements and connotations for the principle of good faith. (3) Many systems in the contract law are created according to this principle, for example, the obligations of the parties to the contract to cooperate, to protect the interests of the other party, to provide information and produce accounts, to change the situation, to regulate the abuse of rights, and to post-contract obligations. With the development of society, other systems may be derived.
3. The contract law takes the adjustment of trading relations as the object, and all kinds of trading relations should be manifested as contractual relations, which should be adjusted by means of contractual legal norms. The rules of contract law are the basic rules to standardize the transaction process and maintain the transaction order. Encouraging transactions is an inevitable requirement of economic development, and contract law is the basic law of market economy. Encouraging trading should be one of its basic goals and principles.