I Concurso del Cartel de Fiestas de Aravaca

Freedom, individual freedom in particular, used to be labeled as bourgeois ideology or philosophy in China because it was criticized to serve the sole purpose of promoting individualism. Although since 1954 when the first Constitution was adopted it has been provided that Chinese citizens shall enjoy the freedom of speech, press, religion as well as demonstration, and the personal liberty of a citizen shall not be infringed, such freedom was never well respected or protected. Historical reason aside,13_{this phenomenon was a}

product of the overly stated supremacy of the State interests.

Under the 1982 Chinese Constitution (as amended 2004), the State protects three different interests, namely State interests, collective interests and private interests (or individual interests). The State interests and collective interests are also jointly called public interests. For a long time during the past decades in China, an infallible principle was that the State interests controlled all

11 _{Freedom of Contract is provided in UNIDROIT Principles as a basic principle in the con-}

text of international trade. Realizing the paramount importance of the principle of freedom of contract, Article 1.1 of UNIDROIT Principles (Freedom of Contract) stipulates that the parties are free to enter into a contract and to determine its content.

12 _{This term is also used politically in China to describe the direction the nation is moving toward}

under the control of the communist party as “socialist road with Chinese characteristic”.

13 _{Under Confucianism, three cardinal guides must be observed in order to maintain the sta-}

bility of the country. The three cardinal guides were “ruler over subject, father over son and husband over wife”.

over collective and private interests. There seemed to exist a golden rule for maintaining the supremacy of the State interest, and the rule as such was com- monly stated as “subordinating of private interest to both the State and collec- tive interests, and subordinating of both private and collective interest to the State interest.” Thus whenever there was a conflict between private interests and the State or collective interests, the former must yield to the latter, no matter what.

Unlike in western countries, freedom in China is not considered as the right that inheres in citizens, rather it is deemed as a special privilege granted by the ruling authority. Put differently, the freedom, if any, is not inherent but given. Consequently, the extent to which people may enjoy freedom would very much depend on the mercy of government. In this context, the concern about whether people had the freedom or had really enjoyed the freedom was hardly the center of attention in the nation. The typical example is the 10-year Cultural Revolution during which the freedom, personal liberty and private interest were totally ignored and deprived. Since 1979, many efforts have been made in order to improve and respect private interests. Still, there is a long way to go.

A fundamental difference between the concept of freedom-inherent and notion of freedom-given is how government would function in dealing with people’s freedom. If the freedom is inherent, people could have it unless restrictions are imposed by the law on the exercise of the freedom. But if the freedom is given, people will not have the freedom until it is granted by the government. Additionally, in the situation where the freedom is deemed inher- ent, it may not be taken away without due process of law or other compelling grounds. It may not be the case if the freedom is regarded as a granted right because the right does not belong to the grantee at the first place any way.

The history of drafting the Contract Law may help illustrate how the con- cept of freedom was dealt with in Chinese contract law legislation. During the drafting period, many scholars strongly advocated to have the notion of the freedom of contract provided in the Contract Law. But they were encountered with various resistances against using the term of freedom of contract. The resistances seemed to come from a fear that the freedom of contract may mean something beyond what the Contract Law is intended in terms of the parties’ right of making a contract.

In its official explanation to the 1998 draft contract, the Legal Affairs Committee (LCA) of the Standing Committee of NPC stated that the freedom of contract was referred primarily to party autonomy, meaning that the parties have the right to freely enter into a contract and determine the contents of the contract. But the LCA further pointed out that the freedom of contract was not absolute and in many countries such freedom was limited to the legally allowable extent. They hence concluded that it might not be proper in China

to simply adopt the freedom of contract.14 _{In their opinion, the freedom of}

contract principle in the Contract Law would need to be addressed to embrace the Chinese characteristics. As a result, the term “freedom of contract” was replaced by “making contract voluntarily” in the Contract Law.

Nevertheless, a quite number of scholars in China believe that freedom as applied to contract would mean the free will of the parties to determine their own affairs through negotiated agreement, and would require that the freely expressed will should be honoured and protected. It therefore seems undis- putable that the freedom of contract has been very well received among Chinese scholars albeit the differences in understanding of the essence of this long established contract principle. Given the impact of China’s ex-system of the planned economy, the implication of the freedom of contract in China is believed to have to emphasize two major points: respect for parities’ will and no government interference.15