Contractual Freedom vs. Contractual Justice – §§ 5 and 6 of the General Part of the Civil Code of the People’s Republic of China

Abstract

The article examines the relationship between the principles of contractual freedom and justice as enshrined in the new General Part of the Chinese Civil Code. To this end, it considers the contract theory of German legal scholar Walter Schmidt- Rimpler. According to this theory, contractual freedom is merely a means of creating a “correct” (just) regulation of a contractual exchange between parties. However, the free bargaining process does not guarantee that the resulting contract will be perfectly just. Therefore, it seems obvious at first glance that the contract should be subject to comprehensive judicial review. Schmidt-Rimpler objected to such far-reaching interventions as a serious threat to legal certainty. The article elaborates on this claim in more detail. It thus provides a reason why judicial review of a contract must remain narrowly limited even if freedom of contract is only a means to the end of contractual justice.