Questions of implementation of the principle of freedom of contract in the law of the People's Republic of China

Current civil legislation of China is constructed on the fundamental private-law principles among which a specific place belongs to freedom of contract. At the same time the principle of freedom of contract is used only taking into account socio- economic and other objective conditions in this country. The study of implementation of the principle of freedom of contract in the People's Republic of China is impossible without the analysis of the political and economic foundations of contract law of China. Thus, until recently in China contracts were formed mainly within the framework of central planning. The transition of the Chinese economy to a market one necessitated the strengthening of value of the above principle. The understanding of the principle of freedom of contract in China can be designated in the following main theses, which also visually illustrate some differences from the similar beginnings in Russia and other countries. Today the distinctive feature of implementation of the principle of freedom of contract in China can be expressed in the following terms. Firstly, the principle of freedom of contract in China, unlike the Civil Code of the Russian Federation, is not explicitly stated in a separate article of the law and this adversely affects its application in practice. Secondly, the Chinese legislators do not consider that their society is ready for the greatest possible freedom of contract; therefore, they set significant restrictions for it, inter alia, in the form of a specific state supervision over the content of contracts. Thirdly, China provides for the measures aimed at improving certain aspects of the use of business customs and commercial practices. Fourthly, the restrictions of freedom of contract in China are determined by general and private rules. General restrictions are set for the protection of state interests in maintaining economic order and social stability. It should be noted that among negative development trends of the Chinese contract law, we can still trace the essential role of bylaws and the activities of administrative bodies. We believe that the development of the principle of freedom of contract must go along the path of its restrictions only by law or expressly stipulated by law. Speaking about the positive tendencies in the Chinese experience in the implementation of the principle of freedom of contract, it should be noted that mandatory use of the principle of freedom of contract is carried out only in the light of the existing in the country socio-economic and other objective conditions.

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