意思自治原则在婚姻家庭编的适用问题
The Application of the Principle of Autonomy of Will in Marriage and Family Compilation

意思自治所蕴含的个人主义、自由原则从财产法扩张至婚姻家庭法，这为婚姻家庭编的各种自治行为适用总则编奠定了价值基础。随着《民法典》的颁布生效，意思自治原则在婚姻家庭编中的适用问题再次提出，意思自治作为私法的核心价值，也渗透到婚姻家庭编的各个领域中，尤其是一直以来较为敏感的夫妻财产制度相关问题，约定财产制更能体现意思自治原则，本次新增的离婚冷静期制度与意思自治原则并不是相互排斥的，以及一直以来饱受争议的忠诚协议的签订也是意思自治原则的一种体现。但是婚姻家庭编作为“情感–经济共同体”与财产法判然有别，所以意思自治原则在婚姻家庭编适用的过程中受到一定限制，需要兼顾个人利益、社会利益与国家利益，做到意思自治、社会规制与国家干预之间的平衡。
The principle of individualism and freedom contained in the autonomy of will has expanded from the property law to the marriage and family law, which laid a value foundation for the application of the general rules of various autonomous behaviors of marriage and family. As the promulgation of the “civil code”, the question of the application of the principle of autonomy of the will in the marriage and family compilation has been raised again. As the core value of private law, the autonomy of will has also penetrated into all areas of the marriage and family compilation; especially the marital property system has always been more sensitive. For issues related to the marital property system, the agreed property system can better reflect the principle of autonomy of will. The new divorce cooling-off period system and the principle of autonomy of will are not mutually exclusive, and the signing of loyalty agreement which has been controversial is also a manifestation of the principle of autonomy of will. However, as an “emotion-economic community”, the marriage and family compilation is quite different from the property law, so the principle of autonomy of will is subject to certain restrictions in the application of marriage and family compilation. It is necessary to take into account individual interests, social interests and national interests, and achieve a balance between autonomy of will, social regulations and state intervention.