契约自由与反垄断规制

契约自由是合同法理论与制度的基石。发展市场经济必须弘扬契约自由 ,但同时必须限制契约自由 ,防止由于其被滥用造成对社会整体利益和竞争秩序的破坏。契约自由的滥用会生成垄断 ,障碍竞争 ,因此必然会受到反垄断公共政策及其立法的规制。中国的反垄断立法同时肩负着维护蕴涵于经济民主中的契约自由和防止契约自由滥用的双重使命。

Freedom of Contract and Antitrust Restraint

The concept of freedom of contract is the foundation of theory and system of the contract law. However, whilst the development of market economy greatly depends on the principle of freedom of contract, such a freedom has to be restricted so as to prevent the destruction of the competition order and the interests of the whole society due to the abuse of the freedom. Since such abuse could generate monopoly and discourage competition, it is therefore inevitably restrained by the antitrust public policy and legislation. This essay concludes that Chinese antitrust legislation undertakes double missions, which are on one hand, upholding the principle of freedom of contract contained in the economic democracy, and on the other hand, preventing the freedom from abuse.