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私法自治派生于法律的形式理性所要求的法律自治,其内涵和外延均大于意思自治。应仅将“自治规范”与“管制规范”这一对范畴限于合同法领域使用。就整个民法领域来说,采用私法规范和公法规范的提法更具包容性。侵权法和合同法上的违法性概念都具有引致功能,二者所引致的内容都包括公法上的强行性规范和善良风俗,其目的在于维护私法自治,防止公法漫无边际地进入民法。
The self-government of private law derives from the legal autonomy required by the formal rationality of law, and its connotation and denotation are greater than that of autonomy of intention. Only the category of “autonomous norms” and “regulatory norms” should be limited to the field of contract law. For the entire area of civil law, the formulation of private law and public law is more inclusive. The concepts of illegality in both the tort law and the contract law all have the function of inducing. Both of them include the mandatory norms and good customs of the public law. Their purpose is to safeguard the autonomy of private law and prevent the infringement of civil law from infiltration into civil law.