合同自由與分配正義

欺詐、脅迫、錯誤等有關締約過程的制度及情事變更、違約金調整等有關締約結果的制度一方面是合同自由制度的重要組成部分，另一方面也是民商法關照分配正義的主要支點。社會福利取決於個體福祉，其中分配的公平是一個前提性條件和內生性要求。基於保護基本權利、維護團體發展、實現個體價值和促進法的合法性等理由，同時鑒於公法和私法之間的密切關聯及二者在分配效率上各自的優勢，不僅在合同法中，在整個民商法體系中也都要顧及分配正義的理念。

Instead of polarized at the opposite of distributive justice, freedom of contract can be better understood as a set of rules or institutions, the core of which lies in the rules concerning the definition of ''real voluntary''. Due to the difficulty to distinguish results and procedures, contractual justice shouldn’t be limited to the pure procedure justice. In this sense, institutions relating to the contracting procedure such as fraud, duress, mistakes and institutions concerning to the outcome of the transaction like unconsciousness, frustration, adjustment of contractual penalties are indispensable parts of freedom of contract, which are used as the main instruments to realize distributive justice in private law. The fairness of distribution is a prerequisite condition and an endogenous requirement for social welfare, which should be defined by the concept of marginal utility, and viewed as the aggregation of individual well-beings. On the ground of fundamental rights protection, group-coordination encouragement, individual values promotion and the legitimacy of the law itself, both public laws and private laws shall take(and have taken)distributive justice into account.