PRIVATE AUTONOMY - DUTIES AND LIMITATIONS

KAS Peking

German law holds a special position in Asia. It has been absorbed by many Asian countries and has served as a prototype for numerous legal systems. For this reason, Asian jurists study preferably at German universities. Last weekend, round about forty German-speaking legal scientists from East- and South Asia, such as Germany came together to engage in debate about private autonomy for three days.

Private autonomy is the authority of an individual to create his own legal position within the legal order. This principle is the fundamental base of numerous legal systems. The ideal situation, that two equal parties face each other is not the regular case. Usually one party dominates the other and the risk of heteronomy or wrongful advantages arise. This problem reaches out to various fields, such as employment law, consumer protection, the economic system or protection of private data.

The Konrad Adenauer Foundation supported the conference on “Private Autonomy- Duties and Limitations”, which was organized by the Chinese- German institute for law and held at the China- University for politics and law. For the second time now, the in Germany educated jurists came together, on the initiative of Prof. Marco Haase and Prof. Xie Libin, to discuss fundamental legal questions and Limitations of private autonomy.

The conference was opened with a speech on the origin and the development of private autonomy by Prof. Shin Yu-Cheol. The idea of autonomy has its roots in old Greece. Private autonomy was also a part of the legal system in ancient Rome. Self-determination of humans was not existent in the medieval times because of the belief, that humans are dependent on the mercy of god. The renaissance then generated, along with the recognition of human dignity, a new discovery of private autonomy. In the natural law doctrine humans were granted rights of self-determination due to their rationality. According to the theory of the jurist Savigny, private autonomy is the fundamental principle of the legal system. Today the free, self-responsible citizen is still a general principle of the German legal system.

This basic introduction shows difficulties concerning the adaption of law development: to transfer law concepts, which have been growing for centuries, like private autonomy, into a culture that is based on different traditions, can be very challenging. Several Asian professors, which studied law both Asian and German, complain about translation difficulties as many equivalent terms are missing. It was emphasized, that due to this reason, not only precise translations are important, but also exact definitions of terms. After this substantial debate on the development of private autonomy, Prof. Uwe Blaurock (Germany) presented the concept of individual freedom in the economy system. Interventions by the government to establish “general rules of the game” and to fulfil public services are necessary, but should be limited in order to establish a social market economy. Lectures on private autonomy in the Japanese, Thai, Vietnamese and Indonesian law systems followed. Dr. Shen Jianfang (PR China) presented the Chinese employment law to the attendees and explained the limitations of private autonomy. Due to the fact that employees have a weaker position than the employer in most labour agreements, private autonomy needs limitations in order to protect the employee in areas such as wage, working hours and labour conditions. Next to the private law aspects of private autonomy, questions of constitutional law were also discussed. Prof. Go Koyama (Japan) presented a comparison of private autonomy in the Japanese and German Constitution.

In Japan Interventions in the terms of a contract, due to the right for a healthy and cultivated life, are legitimized much more often than in Germany. Prof. Thomas Schmitz (Vietnam) explained the fundamental rights limitations of private autonomy in Germany. Concerning constitutional law, the economic capacity of the citizen to act is supposed to be preserved in order to guarantee that he can perform his private autonomy in the future. The risks do not lay within the freedom itself, but within its improper exploitation.

The in German language held conference gained extremely positive responses. The open, critical discussions were experienced as fruitful and inspiring. The lectures were accompanied by lively and controversy debate. The great success of the conference will be continued in following events and publications.