論我國《民法總則》中的自願原則

A Review on the Principle of Autonomy in General Provisions of the Civil Law of China

因特殊立法背景所致，自願原則成為我國民事立法的“特產＂。《民法總則》在既有立法基礎上更新了自願原則的立法設計，明確了其基本含義，在一定程度上體現了意思自治的私法品格並反映了民法基本原則的立法價值取向。《民法總則》中各項具體制度對自願原則的貫徹也較為全面，自願原則在對私法精神的弘揚和私權保護、對維護個人自由和國家管制的平衡等方面均有所助益。但自願原則的立法美中不足，其既沒有表達出主體的自主決定性，又限縮了當事人私權自治的空間，還難以擔當民法基本原則中的核心原則之重任。鑒於私權自治原則的功能顯著，適合作為自願原則的升級版，故自願原則的立法可朝著私權自治的方向改進。

Due to the special background of Chinese legislation, the principle of autonomy has become the 'specialty' of our legislation. General Provisions of the Civil Law updated the legislative design of the principle of autonomy based on the previous legislation, and clarified its basic meaning. The legislation on principle of autonomy reflected the private law's character of the autonomy of will and the legislative value orientation of basic principles of civil law to some extent. The implementation of voluntary principle in the specific system of General Provisions of the Civil Law is also comprehensive, and it will conduce to the promotion the essence of private law and the protection of private rights, and to the balance of individual freedom and state's regulation. However, there are some deficiencies of the voluntary principle's legislation, including that it does not express the subjective autonomy, and it limits the scope of private right autonomy. In addition, the principle of autonomy is difficult to be regarded as a core principle of the basic principles of civil law. The principle of private right autonomy is an upgraded version of the principle of autonomy because its function is significant, and the legislation of the principle of autonomy should be improved towards the private right autonomy.