On The Economic Law In China's Judicial Relief

Ever since the economic law was born in China, disputes surrounding the forms, significance and independence of the economic law have never stopped. It has been modified several times in judicial practice. However, in spite of the dispute, a set of judicial remedy proceedings is required to match substantive rights of the economic law, because many cases are currently impractical in litigation in our country and most rules of the economic law have been hard to refer to in practical judicial judgment. At the same time many problems exist in theories related to the economic law: whether an independent responsibility and the litigable are attached to the economic law; whether it is necessary to establish a set of independent litigation system of the economic law; what are the characteristics and theoretical base of the litigant right; what is the differences between the economic litigation and the civil litigation, and what is the relation between the public interest action and the economic litigation. Based on a research of current situation and characteristics of economic law in our country and integrating the study of law and economics, the thesis explores into the economic litigant right and gives some solutions to the above question. It attempts to construct a judicial remedy system for economic law under the existing judicial system. It consists of six chapters:Chapter 1 is entitled by deficiency with the economic law litigation and its causes. This chapter reviews the development history and current situation of the economic law in our country. The main problems with the legislation and the implementation of the judicial remedy system of the economic law are noted and the causes are analyzed. The external and internal factors combine to hamper its access to justice. The external factors include restriction and limitation of administrative enforcement, restriction of guiding principle of legislation, restraints of jurisdiction and the judicial practice, gray area caused by variation of economic litigation, influence of litigant theory and academic preference. The internal factors are more concerned with the characteristics of the economic law, such as generalization of economic law, uncertainty of economic rights and the default of an economic responsibility system.Chapter 2 is entitled by necessity and practicality of the establishment of judicial remedy system of the economic law in our country. In the chapter the significance of establishing a judicial remedy system is dealt with firstly: it will be instituted to secure the legal rights, standardize administrative enforcement, define responsibilities, strengthen the authority of the state over the society, safeguard public interest and maintain social ethics and help to perfect theoretic system of the economic law. And, economic disputes are discussed in the chapter. Characteristics of economic disputes are analyzed and its differences with the civil litigation are pointed out: the parties are on an equal standing rather formally than substantively, which results in procedures quite different from the traditional way. Based on this the article comes up with some ways for the solution, starting with reform of the theoretic base and the restructuring of the system. In theory, litigant possibility of the economic law, especially the macro-control law, should be re-defined, and traditional theory about litigant right should be reformed. In system, after the analysis of the advantages and drawbacks of major doctrines on economic litigation, reform of the existing procedure law and establishment of a special judicial procedure of economic law to solve economic disputes are put forward.Chapter 3 is entitled by economic litigant right. The economic litigant right has a crucial role in the realization of judicial remedy system of economic law. It is central to solving of problems brought about by economic litigation. Economic litigation requires expansion of litigant right objectively, a fact that runs counter to the traditional theory on litigant right. Based on the traditional litigant right and combining the law with the economics, and with a special view to tackle the external problems of economic law and economic litigant right, necessity and the restriction in practice of the expansion of economic litigant right in the process of institution of a specific economic litigation system is discussed.Chapter 4 is entitled by frame of judicial remedy system of economic law. A rational judicial remedy system of economic law is based on reform of the existing three litigation procedure and establishment of special judicial procedures of economic law. However, the special judicial procedures of economic law differ from the public economic interest action in that the public interest action is only a part of it. In this chapter limits of application of civil litigation and the administration litigation in settlement of economic disputes are discussed and reform proposals are put forward. Central for reform of the civil litigation is the realization of aids in right granted to the majority of people. The reform of administration litigation lies in tightening of supervision of state intervened economy. In the end of the chapter the special economic litigation system featuring public economic interest action is discussed.Chapter 5 is entitled by overview of special judicial procedure of economic law. Structure of the special judicial procedure of economic law is set out. Two principles of equilibrium and efficiency for construction of the special procedure are introduced, and public economic disputes and personal economic disputes are illustrated in the discussion of matters related to the special judicial procedure of economic law, such as scope of accepting cases, jurisdiction, parties, evidence system, litigation fee, tribunals, legal responsibilities and judge's discretion.Chapter 6 is entitled by typical economic disputes and the judicial procedures. Due to its special features, economic related disputes vary greatly and a uniform judicial system is hardly applicable when weighing these disputes. A comprehensive system of judicial procedure is thus required. In the chapter several economic disputes typical in the country are discussed in the exploration into the necessity to reform the current judicial system. Judicial remedy proceedings, such as in expropriation, environmental pollution, protection of state owned assets, government procurement and antimonopoly are discussed.