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Prof. Xue Jun Gave a Lecture on the 448th Civil-commercial Law Frontier Forum: the New Topic of Private Autonomy

On April 11, 2017, the 448th civil-commercial law frontier forum titled "the New Topic of Private Autonomy" was held in 601 international lecture hall of Mingde Building in Renmin University of China(RUC). Prof. Xue Jun, the dean of law school of Peking University and legislative expert advisor of finance and economic committee of the National People's Congress, gave a keynote speech. Prof. Zhang Xiang, Prof. Shi Jiayou, associate professor Zhu Hu, assistant professor Xiong Bingwan of law school of RUC attended the forum and participated in discussions. The forum was hosted by Li Guangshen, a doctoral candidate of our law school.

Prof. Xue first talked about the private autonomy in the traditional civil law theory framework, and differentiated three concepts "private autonomy", "private law autonomy" and "autonomy of will" and then made a comment on them. He defined the scope of areas of "private autonomy" and introduced that the value target of "private autonomy" would change as the change of times.

Prof. Xue had an analysis of the process that how civil law theory carried out and put into practice the principle of private autonomy and then realized the valuable aim of private autonomy by legal act theory. The precondition of the traditional theoretical analysis framework is the adversarial relationship between national force and private autonomy. It highlights that there is strength disparity between the powerful state institutions and weak private subjects. As nation-states gradually decline and supranational organizations and multinational corporations rise, there is changing in strength contrast between the private and their nations.

Then, Prof. Xue analyzed the fine regulation of law on private autonomy from three aspects. He argues that the content of private autonomy should include the freedom of “into”, which means the private should have the right to decide whether to create some legal relationship; the freedom of content, which means the private should have the right to create the specific content of some legal relationship; rule autonomy, which means the private should have the right to choose the provisions or rules to administer their own affairs. He also introduced new development of the application of private autonomy in the field of personality right, property law and family law.

Finally, Prof. Xue pointed out that supranational, moral, industry and other factors all played a different degree of influence on adjusting relationships between parties. The simple "public - private law" binary model hasn’t been total with the reality, so the new analysis system of “standard multivariate" should be taken to help understand the topic "private autonomy".

On the discussing phrase, Prof. Zhang pointed that powerful private persons may use the autonomy to impose unequal obligations on the weak. In order to protect the weak in the society, the public rules should actively get involved in the field to constraint the powerful. He put forward the following conclusion: more private autonomy may be denied in the field of human dignity as the cornerstone of personality right law, so more private autonomy should be sure in the field of property law.

Prof. Shi said that our study of civil law science needed a “paradigm revolution” in the sense of methodology. Civil legislation in our country is still the old thinking, compared with other countries and regions, so there is still a huge improvement space. In the field of family law, especially in marriage leasing, cohabitation, gay marriage and other issues, laws should pay attention to personal freedom. In the field of contract law, the Civil Code shouldn’t include too much of typical contracts in the contract part. Related problems can be solved by special laws or industrial standard contracts.

Mr. Zhu presented his views on “private autonomy” from the aspects of personality right law, property law, contract law. He argued that the civil law should not only guarantee the possibility of autonomy but respect the will of being governed by others in the condition of heteronomy. On the issue of Numerous Clausus Principle, he thought that the value of private autonomy couldn’t directly deduce the specific rules. That is to say, there is quite a long distance between legal value and specific provisions. In addition, Mr. Zhu argued that if the legal source was too narrow, that would lead to the solidification of specific rules, causing the problems of avoiding rules.

Mr. Xiong thought that private autonomy has two aspects: one is freedom, the other is realizing spontaneous cooperation with others and getting what they want through autonomy. He said that the understanding of “incomplete contract” would affect the detail rules of contract law, while incomplete contract management needed more standardized rules in the Civil Law as reference and explanation. At the same time, the parties should be given more autonomous space.

In the end, Prof. Xue briefly responded to the above views and answered the questions asked by the presented students.

(Editor: Sui Chuan)

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