Under Private Law Vision Of Social Transformation

The article researches the transition of Chinese society under the private law field of vision.By the research,the author wants to comb the development history of private law rules and private law orders which always accompany with private law rules in transitional China during past thirty years,to discover the signification of the private law rules and private law orders to help the transition of Chinese society and our long-term civilization and improvement of the whole society based on the developing goals of Chinese society in the period of transition and combined with the particular national conditions of China.Besides the introduction and conclusion,the article can be divided into six parts:(1) the background of the development of private law in transitional China;(2) the social foundation of the development of private law in transitional China——the origin of civil society;(3) the development process of private law in transitional China;(4) the achievements of the development of private law in transitional China——the vigorous growth of private law orders;(5) the developing barriers of private law in transitional China——disputes concerning the equal protection of property right;(6) the long-term goal of development of private law in transitional China——the balance of public and private interests.Private law rules are those regulating the property relations and personal relations among members of civil society.From modern times,the appearance of private law rules in every country has been complicated civil law system, which main representatives are Civil Codes of every country.The introduction of the article compares the concept of private law with that of civil law and points that the "civil law" in modern sense is modern appearance of private law originated from Roman law.Thus,although the word usage of two concepts is different,they have same spirit,value-orientation and functions. The recent civil law research of China is naturally to research the private law which opposes to public law and regulates relations in civil society.This is a premise explanation of the article,which emphasizes the private law nature of our civil law.The first part makes a retrospection of original background of development of private law in transitional China.It includes the political and economic orders of our society from 1949 to 1978,and the influences of theories of economic law which follow legal theories of Former Soviet Union to our development of private law,that is,initial promotion and latter hindrance.The retrospection discovers the difficulty and complication of the development of private law in transitional China,and predicts more difficulties we may encounter in further development.And the most important thing is that we ultimately realize that to develop perfect market economy is a necessary process of the development of Chinese society.The market economy system provides individuals with efficient spaces to transact.And based on this,the protection of private interests comes to face and then prompt the recovery of formulate private law rules in our society.The imperative transition has begun with the reform and open policy in 1978,and the transition of Chinese society to modernization has also begun with that.The application of private law rules needs a civil society which opposes to political state.It is a social foundation of producing and developing private law rules in transitional China.The research of private law rules necessarily follows the survey of civil society.Thus,the second part observes the theoretical researches of civil society starting in 1990's.And by the observation,the article concludes that:(1) there are particular backgrounds in research of civil society theories in China;it is impossible to refer to the civil society theories of west countries;it should recognize its own goals and responsibilities.(2) in understanding and researching the construction approach of Chinese civil society,Chinese academic circle still holds a viewpoint of state-orientation which is short of thoughts of private law. Further,any construction approach of civil society ultimately depends on the introduction and plan of states and governments,which indeed deviates from the division of civil society and political state.So,to analyze the development of civil society in transition from the aspect of the development of private law, and to improve the private law rules which can be used to regulate orders of civil society are necessary approaches to development our civil society.The third part combs the development process of our private law in transition,and comments deeply the main civil legislations.The development process of private law in the thirty years is a process in which the model of using policies to compulsorily regulate private relations has shifted to the model of using private law rules to regulate automatically.It proves a clear clue of the development of private law in transition,that is,from "policy governs compulsorily" to "rule governs automatically".The regulation of private law rules to civil society will provide us with private law orders.The research of social transition necessarily follows the research of private law orders.Thus,the fourth part discovers that the private law order is a kind of social order which beginning is spontaneous social interaction;support is private law rules;appearance is spontaneous orders; basic characters are non-objective and non-morality.Those may distinguish private law orders from public law orders,which must be insisted in order to help good development of our private law orders.The fifth part discusses the issue of the balance of public and private interests which comes to face after the event concerning persons who stubbornly resist moving in Chongqing on March,2007.At one hand,the article observes the reason why the balance of public and private interests is difficult lies in the difficulty to define the concept of public interests.And at the other hand,by analyzing the basic characters of public interests,the article provides an approach to balance public and private interests,that is,the combination of general provisions and procedural security of judicature.In the conclusion,the article responds to the idea of the construction of harmonious society.The duty of private law is to concern our daily lives.By the conditions provided by private law,we may realize our objectives of lives. The development and improvement of private law will be needed by any country to realize its modernization and its social harmonization.In order to realize the objectives of transition,we must continually improve the private law rules.This is a basic symbol of social transition of China,which may help us to establish a harmonious society which includes some factors such as civilization,advancement and energy.The researching methods of the article:documents reorganization; comparative research;case analysis...