Economic Law Research

The author carried out the dissertation in this thesis along the approach selection, suitable subjects,and the subject type summarization,the boundaries of subject acts, the conflicts and coordination of subject benefits concerning subject research.It is a basic rule in times of positive law that subjects and the legal issues of their structure are propositions closely connected with the evolution of the law only if law is the should-be rule and the society runs within the legal framework.The issues on which entities should be covered in the legal subjects and how to define these entities from the legal aspects should be attributed to the concept consideration concerning the subjects.At the same time,when we discuss the acts of the subjects from the perspective of positive law,we can not take a conception as a judging standard for granted but take a scientific judging standard;if the legislative thinking covers all factors influenced and selected under a reasonable and open basis,the system on subject will be a comparatively reasonable one.Civil law indeed reflects the normal request of market-oriented economy,but this reflection only originates from the coincidence between civil law and market-oriented economy objectively when reflecting human nature.In another word,civil law can reflect the normal conditions of market-oriented economy,but it is not the only explaining purpose itself,and the rooting purpose of civil law is that the human nature liberation under state system.Different from civil law,economic law initiates its subject research with value pre-establishment for the reason that it selects market failure as the breakthrough point.In another word,market failure is the practical basis for the outcome of economic law,which only reflects the social economic phenomena from the objective perspective,while the deep-rooted real reason lies in human nature. Human nature is a natural psychological tendency formed from human living and developing.There's markedly difference between the human nature concept in economic law and civil law.Civil law starts its discussion from economic man hypothesis;while economic law is a kind of rational regression"from contract to identity".The construction of economic law subjects should be based on the identity, which is not a historical retreat,but an answer to economic law as the outcome of institutional evolution.This point request economic law putting its search for human nature under the society,only by this,the subject identity required by economic law could be reveled.From human nature perspective,economic law should overcome or correct the deficiencies in civil law human nature conception,and should establish the conception of"social man"(which is not a made or imposed conception under the basis of sociological and economical reasoning).There are some specific reasons for this.First,"social man"conception coincides the value conception of economic law and current specific institutions;second,without deep research from the knot of human nature,institutional design surrounding overcoming market failure is only an afterward regulation,which is hard to achieve real effects.Economic law subjects and other legal branches subjects markedly differ from their specialty,which reveals the identity requirement of economic law subjects.Of course,specialty requires type summarization on economic law subjects.This article summarizes the subject type in actual life as four economic law subjects with corresponding rights(powers),i.e., consumer with consuming rights,operator with economic freedom,government with state imposing power,and the social organization with economic social autonomy.The analysis route via human nature provides theoretical basis to mark off economic law subjects via the standard of rights(powers).The economic law human nature value pre-establishment provides theoretical premise for introducing behavior legal economics analyzing tools.Moreover,the research on economic law subjects should introduce philosophical thought,i.e.,taking the philosophical thought on subjects category as the main stream,for that the research on economic law subjects institution is to establish a rational value,human nature conception,not to establish simple behavior regulation.The historical process for subject theoretical evolution from entity subjects in ancient Greece,to the perception subjects in modern times,to current life subjects reveals that the philosophy turns from ontology to epistemology, to humanism.The logic of this process lies that theory begins from the discussion on exterior things,processes by the brain,and eventually turns to human itself,which gradually reveals the humanism in philosophy and the content of its value,meaning, and foundation concerning human living.The civil law theory classifies the living methods of different subjects as natural man,corporation and other organizations,and carries out some research and reasoning in the fields of abstraction.The abstraction process greatly extends the founding and applying fields for institutions.Anyway, there's few breakthrough in the abstraction and establishment on subject institution for economic law as an independent legal department,which almost becomes the bottleneck to prevent economic legal theoretical breakthrough.Therefore,as far as economic law subjects concerned,it is necessary to follow the perceptive route of"from specialty to abstraction then back to specialty",that is to say,we make some abstract try under the basis of analyzing current specific existing forms for subjects, while the abstraction process should combine the thinking from philosophy on subjects and the nature of subjects,and the initiating state of economic law subjects is to be deeply analyzed from human nature perspective,then the legal relationship is borrowed to review economic law subjects from rights(powers) perspective.Of course,in this process,we shall involve the behavior analysis for economic law subjects and the conflicts and coordination of the economic law subject interests.In a word,economic law is the open revelation of human nature,which is the outcome of the first liberation for humane nature;while economic law is the inner perfection for human nature,which from some point of view is the outcome of the second liberation for human nature.This thesis consists of five parts,whose basic approach is that"philosophical thinking,the value pre-establishment on humane nature,the summarization of subjects,the behavior mode of subjects,the conflicts of subject interests and their resolution".The whole thesis goes as follows.Partâ… is concerning the route selection on economic law subject research.It mainly involves the premise issues on economic law subject(the keynote of economic law subject,the disciplinary position,the logical starting point to initiate economic law subject research,the skeleton for economic subject research),the historical differentiation and institutional evolution for economic law subject,and the boundary and breakthrough for economic law subject research.Civil law subjects' excessive attention on their own freedom arouses the inner performance on"moral position"and the outer requirement for social nature,which is a double effects and process from subjective and objective perspective and which also coincides with the part economic law plays from logical perspective.Only by transferring the role of human from"economic man"to"social man",and by adjusting the role at a suitable time,can the subject suit the evolution of social institutions in a better way.At the same time,with the overloading of the capacity of freedom from the society,the interior part of freedom will surely push a need that the personality basis under the push of contract will go for ethics which surely means the recursion of humanity.While in modern society which putting more emphasis on humanism,from some point of view,the turning from contract to identity is reasonable.Undoubtedly,the economic law as the product of institutional evolution meets the need.It is necessary and capable for economic law to make effective response on institutional evolution and the lack of other legal departments.The subject of economic law under this background will necessarily change.It is to be determined in this process first that the logical starting point for economic law research is freedom,for the reason that economic law's prosperity comes out of market-oriented economy,which makes it reasonable to discuss the subject of economic law within the sketch of market-oriented economy,while the reasonable core of market-oriented economy is freedom.In addition,economic law comes and develops under the concepts of humanism,which determines that economic law subject research has to start logically from freedom.The following thinking approach is to be followed in specific research by this evolving:the reality of economic transformation is the basis for economic law subject research;the role of personality determined is the core of economic law subject research;the analyzing and rethinking of legal relationship is the approach in economic law subject approach.The core of this part is the research on the border of economic subject and its breakthrough.On the basis of analyzing the historical differentiation and institutional evolution,the author introduces a philosophical thinking,that is,to establish the human route in economic law subject research by following the turning of modern philosophical thinking.In human route of thinking,personality discussion is the starting point of economic law subject.Humanity is the theoretical support for economic law subject research route.During the process,by comparing the humanity in west and China,the author tries to find the practical route suiting Chinese humanity, proposes the humanity value pre-establishment,and puts economic law subject research on the foot of humane adjustment eventually.Partâ…¡is concerning the proper qualification for economic law subject.In this part,the author puts the investigation on Roman law as an example,analyzing the application of subject thinking in subject proper qualification,aiming at the evolution and practical application for subject thinking,and eventually providing theoretical and practical philosophical thinking for economic law subject research.To judge from philosophical thinking,subject nature is the nature why subject is subject,and it is also the foundation and conditions for why subject is subject.As Heidegger put it,the nature of subject constructs subject,the qualification of subject includes:the self-discipline of self-action;the initiative-ness of self-consciousness;the overlapping of freedom which of course sets its feet on right(or power).Then by combining the analysis of the vague legal relationship and its resolution,the author proposes the qualification of economic law subject should be judged by the right(power) specifically.From analysis jurisprudence,attributing right to the technology realizing the right actually denies the actual subject concept behind right(or power).The dissolution of this subject concept makes the right emerging.This research approach may provide a thinking route,i.e.,all being carried out around right(or power).As analysis jurisprudents put it,rights and obligations are occupied by acts and omissions,law regulates these acts of specific persons by special means.The reason why the author extends from economic law subjects of certain types to four rights(or powers),i.e.,the right to consume,the right to be free in economic life,the power of invention from the state,and the autonomy of economic social life,which is built on the basis of economic law subject qualification.Partâ…¢is about the explanation of economic law subject categorization on basic issues.The categorization of economic law subject is under the direction of its human nature value pre-establishment,which focuses on the specialty of economic law subject.The specialty of economic law subject is determined by the regulating objects superficially,while in fact it is because of the changing knowledge from people on human nature.It is caused by legal value change.It is also caused by the progress of the spirit of humanism.The categorization of economic law subject is one of the specific means of performance for economic law subjects.The categorization of economic law subject has to inherit the thinking route of the pre-establishment of economic law human value,which could better solve the fact judgment and value judgment issue in economic law phenomena.Economic law consists of a set of regulations,of which,there are valuable meaning.These rules, judging from the practical operation,cover the micro- and macro-aspects of social acts.They are hidden in legal rules,while to find the media inside,we have to sum up, hackle,and explain in detail.This is a legal analysis of regulation.For this reason,the author selects some representative laws to investigate economic law subject.In addition,the author also collects some specific regulations to prove the subject.Under the basis of analysis,the author believed that there are four economic law subjects, consumers,operators,government,and group social organization.Partâ…£is about the act analysis on economic law subjects.The economic law subject is applied to explain the specific institutions of economic law,while economic law act is the media to explain economic law subject theory.This part is directed by the human value pre-establishment of economic law to establish the analyzing tool for corresponding economic law subject,i.e.,act economics,and act law and economics. This part also explain the core thoughts,theoretical advantage,and actual effects, and eventually makes clear the combination of act law economics and economic law subject act analysis.The author proposes three determining standards on determine the border of act for economic law subjects,i.e.,the reasonable request on standard of social entire economic interests,the prevailing standard of market combining forces, and a double standard combing the activity and no-activity.In detail,in the rectification on economic law subject act,consuming justice shall rectify the partiality of consumers' act omission,responsible government concept rectifying the partiality from the government.Of course,to know the act border of economic law subject,we have to leave the equilibrium mode,while pay more attention on the dynamics.We shall search the composing factors in a definitely unbalanced state.Partâ…¤is concerning the interest conflicts and their solving mechanisms on economic law subject.At first,this part reconsiders the interest conflicts in a macro way,and introduces the analyzing paradigm of state and market.State and the market is the sum of economic subject interest relationship,which can divide analyzing framework for economic law subject in a micro-way.The changing of economic law subject interest relationship is the summing up of economic law thoughts evolution. This part extends its analysis from economic law subject interest relationship historically,sorts the actual response on subject economic law subject interest relationship.The author believed that the key on answering the economic law interest relationship is to reconstruct state invention on the basis of market moral risks. Second,this part also explains the cognition of economic law subject interest, attributing the root of economic law subject interest conflict to three fallacies.Then, the author reconsiders subject interest conflicts from stat invention and market freedom perspective and market freedom and the autonomy of private law,and systematically explains the bottleneck of subject interest conflicts.In the end,the author proposes that we should combine the interest of economic law subject after analyzing the comparative advantage for economic law in solving subject interest conflict.The author also proposed four aspects to construct the solving mechanism on economic law subject interest conflict.