Research On The Division Between Public Law And Private Law Under The Condition Of Market Economy

Originated from ancient Roman law, the division between the public law and private law is now universally accepted as the fundamental and initial law classification in Civil Law system. To divide the law to be the public law and private law is the important theory of the developing civilization, regarded as the base on the whole modern law structure, to be the basic principle of modern law.Operating the socialist market economy system actually, developing and perfecting the basic economic system, how to establish the proper socialist law system are the important problems we faced. Not only to correlation of economic foundation nearly, were the division and establishment of law system influenced by the politics system, history factor and traditional legislation. As our socialist market economy originated form the past planned economy, power still exist the phenomena of strengthened and abused, the benefits of market participate could not be assured effectively, the phenomenon of private rights were infringe upon still deluge, then affect the whole safeguard and order of market and obstruct the normal development of market economy. Just for it, this essay demonstrates to assorting of the fitting for the theory of division between public law and private law with socialist market economy system and researches the trends of our law system developing. The division between the public law and the private law under the socialist market economy system belongs to the basic theory research on economy law, however the economy law belongs to the public law, private law or compatible the public law and private law? There have been more debates on theory fields. If the basic theory of economy law being unclear, the guide principles of branch law will become confusion, and harm to form the perfect market economy law system.The essay analyzes the problem from four aspects: First, from the basic theory of the division between public law and private law, review the origin and evolution historically, re-analyze the standard of division between public law and private law and explain the logic relationship of them. Second, after contrast to research the law construct in planned economy, come to the conclusion that it exist the huge abuse, although has the positive function in special situation of country. Third, from the feature of market economy and the attribute of private law, analyze the inevitability and necessity of public law and private law under the market economy system, nail down the special guide principle and legal senses. Finally, though the discussion and research of law system developing under the market economy system, sum up the trends of public law to have the characteristic of private law, wonder to explore some useful legislation to perfect the china's socialist market economy system and law system, positively to promote our socialist market economy to develop healthily and orderly.The essence feature of democracy and nomocracy in harmonious society is that restricts and controls the public power. Power-right mode of nomocracy thought emphasize the power of states and government out of law, no power out of law, power determined by law. The formed of the division between public law and private law, not only establish the authority of public power, but also protect the public right positively; either obey the public principle of power determined by law and power restricted, or express the private spirit of freedom and independence, consequently to form the legal construct with harmonious and opening feature. All is definitely the effective approach to establish the socialist harmonious society and democracy and nomocracy.