法律家長主義視角下《民法典》合同制度的發展

Legal paternalism is a justification for restricting the freedom of persons in civil law. It aims to promote the welfare of persons by compulsion or nudges. The design and interpretation of many contract rules in the PRC Civil Code can be understood and reviewed from the perspective of legal paternalism. As far as traditional mandatory legal paternalism is concerned, some rules fail to limit their scope of application according to the purpose of protecting specific parties, and such rules should be applied restrictively; many courts' decisions or judicial interpretations excessively restricts the parties' freedom of contract in the name of“protection”, and it is suggested that courts should be restricted to use legal paternalism in purposive approach to interpretation. As far as libertarian paternalism is concerned, when designing legal rules, the legislator may consider providing more“menus”of possible options, and when the status of parties is unequal, it can also consider providing penalty default rules. When interpreting legal rules, if a rule only involves parties' own interests, it is preferrable to interpret it as an advisory rule rather than a mandatory rule. When competent authorities use legal paternalism as a justification, they should bear the burden of persuasion based on correct factual basis.