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Economic Law Approaches To The Problems Of Externality

Posted on:2010-08-07Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y C HuFull Text:PDF
GTID:1116330362454515Subject:Economic Law
Abstract/Summary:PDF Full Text Request
The problems of externality were firstly presented by western economists as one of the important phenomenon of"market failure". The Chinese professor Sheng-hong once pointed out that the economics have always been facing the problems of externality from the broad sense, and some have been solved and some others are being solved. From this we know that the problems of externality exist anytime and anywhere. Therefore, the researches on the problems of externality firstly started from the field of economics, and then spread to ethnics, juridical science, politics, sociology, demography and so on.The concept of"externality"covers a very wide scope and its meanings have been studied by scholars from different disciplines. The author of this paper focuses on the solving of the problems of externality from the institutional perspective. Coase, the famous institutional economist of America,once incisively pointed out that the problems of externality may be solved by the market or the government but all market plans must rely on a series of legal rules established by legislators and courts. It is obvious that Coase emphasized the necessity of solving the problems of externality by laws. Mises, the economist of Austria claimed that all negative externality should be solved by reforming the law of responsibility and damages and by eliminating the institutional barriers of private ownerships. Mises also offers some suggestions about how to solve the problems of externality by laws.As for the approaches to solving the problems of externality by economic law, Professor Li Chang-qi thinks that we should seek for"legal prescriptions"to the problems of externality from the academic achievements by economist instead of letting the our researches rest on the level of economics. As the basic legal means of the government to intervene the economy, economic law can surely play an important role in solving the problems of externality. Professor Zhang Shou-wen points out that the legal researches are mainly aimed at the solving of the problems of externality, and there is no exception to economic law. The author of this paper thinks that economic law shall play a more important role in solving the problems of externality and tries to explore the approaches from the perspective of economic law.This paper consists of three parts. The first part contains two chapters and it is the springboard of this dissertation. In this part, the author summarizes the meanings of and the approaches to the solving of the problems of externality. And the aim of this part is to provide some foundations for further researches. The second part contains three chapters, namely, Chapter Three, Four and Five. This part focuses on the principles, the guidelines, the approaches and so on. The third part is about the practical issues, including two chapters. The author firstly carries out the empirical studies of the problems of externality in the field of production, exchange, distribution and consumption under China's market economy conditions. And then the author suggests that economic litigation mechanism for public interests should be established after analyzing the shortcomings of the traditional litigation institutions.Chapter One introduces the basic theories of the problems of externality from the angle of economics and laws. We shall firstly know how the economics deals with the problems of externality in order to introduce this concept into the field of juridical science. It is almost impossible to find the legal approaches to the problems of externality if we have not really understood the meanings of externality itself. Therefore, the author of this paper firstly studies the emergence and meanings of externality from the angle of economics. And then the author explores the above-mentioned issues from the angle of law. The conclusion is that the concept of externality can be introduced into legal researches and it is possible to find some legal approaches to the problems of externality.Chapter Two is a summary of different approaches to the solving of the problems of externality. The author mainly introduces the ethnic, economic and legal approaches to the problems of externality and then makes some comments. The legal approaches are better than the ethnic ones, and this viewpoint is also supported by Stiglitz. He thinks that laws have some advantages when solving the problems of externality because the victims who enjoy direct interests are surely to undertake the responsibility for the implementation of laws instead of depending on the government. This mechanism is more efficient because the victims are more willing to know whether the harmful incident has happened than the government. The legal approaches, the ethnic approaches, the governmental intervention and the market approaches must be combined in order to solve the problems of externality effectively. Also the other sections of law such as civil law, criminal law, administrative law and so on shall work together to achieve a better result. At the end of this part, the author puts forward a hypothesis that economic law has an obvious advantage when solving the problems of externality, which is the basis for further discussions in the following chapters. Chapter Three is about the basic principles when using economic law to solve the problems of externality, namely, the theoretical basis and the interior mechanism. The theoretical bases include politics, economics, sociology, ethnics, juridical science and so on. And the interior mechanisms are as follows: the emergence of economic law being to overcome the market failure, economic law embodying the social priorities, economic law being a soft law in many ways, the oriented distribution of rights and duties, the combination of public law and private law, the prevention and remedies of externality, and the hypothesis of human nature of economic law, and so on. The analysis shows that economic law is able to solve the problems of externality.Chapter Four is about the basic starting points when using economic law to solve the problems of externality, namely, the values and the ideas. The values include substantial fairness and social benefits. The so-called substantial fairness here is somewhat different from the form fairness in civil law and the social benefits are also different from the individual benefits in civil law. The ideas of economic law when solving the problems of externality include social harmony and scientific development. The social harmony means the harmony between man and ecosystem, man and society and so on. The scientific development means the development of extended human rights and scientific ways. Therefore, the basic starting points when using economic law to solve the problems of externality are as follows: substantial fairness, the integrated benefits of the society, the harmonious and scientific development of our society.Chapter Five is about the approaches to the solving of the problems of externality from the perspective of economic law. The functions of economic law such as incentive, information transferring, regulation of public goods and optimizing the allocation of resources are especially important to the solving of the problems of externality. The incentive function of economic law is benefiting the solving of positive externality while the rest of the functions are important for the solving of the negative externality. At last the author concludes that the functions of economic law can effectively help solve the problems of externality.Chapter Six is about the practical issues when using economic law to solve the problems of externality. This part firstly analyses the problems of externality in the fields of production, exchange, distribution and consumption under the market economy conditions in our country. Then the author points out the shortcomings when solving the problems of externality and offers some suggestions to improve the practices. The author discusses the problems of externality in the field of production by the example of economic regulation of enterprise's social responsibilities. The problems of externality in the field of exchange are embodied in the safeguarding of fair dealing by economic law. The problems of externality in the field of distribution can be solved by following the example of guaranteeing fair distribution of social wealth. And the author discusses the solving of externality problems in the field of consumption by the example of safeguarding citizen's rights to environment. The main contents of economic law, including the institutions for the market participants, the market orders, macro-control, sustainable development and social distribution, are helpful to the solving of externality problems in the above-mentioned sections of socialized mass production.Chapter Seven is about the mechanisms of solving the problems of externality by economic law, namely, economic litigation mechanism for public interest. Roscoe Pound said that the biggest problem today does not lie in the substantive laws but procedural laws. So we must try our best to reform the procedural laws in order to realize our rights. In this chapter the author firstly discusses the shortcomings of the traditional litigation mechanisms and then the special functions of economic litigation mechanisms for public interests. The concrete measures to solve the problems of externality by economic litigation mechanism are as follows: making more plaintiffs qualified for the externality-concerned litigation, reasonably distributing the burdens of proof, granting more power to the courts when dealing with such cases, establishing special benches for such cases, establishing a better litigation fee system that is beneficial to the plaintiffs, and setting up the incentive mechanisms. The cases about externality need a new litigation mechanism which can be called economic litigation for public interests. At the same time, the innovation of current institutions is necessary because the improvement of economic litigation mechanism for public interests can surely lead to the better solving of the problems of externality.
Keywords/Search Tags:externality, the problems of externality, the solving of the problems of externality, the economic approaches, economic litigation mechanism for public interest
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