Study On Rights In Economic Law

Right is not only a core element of the law, but also a core issue of the legal research.The German legal scholar Leibniz said “the science of law is the science of right”. Since themodern economic law came into being at the end of19thcentury, as the new legalphenomenon which embodies the state interference in the economy, it is a response to “thecrisis of western traditional rule of law” said by Berman, and it also overturns people’straditional view of law to a great extent. Although the phenomenon of economic law hasexisted for more than one hundred years, the core issue of economic law, i.e. the validity andlegitimacy of public power interference in private relationship, has not been proved in depthyet and has always stirred controversy in practice. Correspondingly, the theoreticalexplanation to the rights in economic law is weak and the recognition of the rights ineconomic law is controversial. The view that the rights in economic law may be taken into thesystem of traditional private rights and the system of traditional public rights and the viewthat the rights in economic law is a new type of rights coexist. The complexity of thephenomenon of economic law decides that for a considerably long period of time people’scognition of economic law and the rights in economic law will be in a situation thatdifferences is much greater than consensus.The academia of economic law generally defines the scope of rights in economic law intwo senses, one is in the broad sense, holding that the scope of rights in economic law is notonly including state powers owned by government such as power to regulate the market andpower to control the macroeconomic but also including private rights owned by individualsuch as the business operator and the consumer; the other is in the narrow sense, holding thatthe scope of rights in economic law is only including the private rights of an individual.Viewing from the current research achievements on rights in economic law, most of economiclaw scholars define the scope of rights in economic law in the broad sense, while very feweconomic law scholars define the scope of rights in economic law in the narrow sense.Different research angle reveals the different aspect of a problem, which make the cognitionmore comprehensive and in-depth. With an attitude for knowledge, on the ground of thecurrent research achievements, the author from the angle of the protection of the private rightsof an individual did a series of fundamental work. This Paper is the author’s doctoral thesis and also some thoughts of the author arising from this two-year research, in the hope that itwould generate more public discussion and promote the research on the important andunavoidable issue of rights in economic law.This Paper is divided into two main parts. The first part is the ontic part (Chapter One toChapter Three), which mainly approaches the definition, characteristics, nature, source,generation and types of rights in economic law. The second part is the practical part (ChapterFour to Chapter Five), which mainly approaches the disposition and realization of rights ineconomic law. This Paper, based on aforesaid logic, apart from the forward and theconclusions, is divided into five chapters as follows:Chapter one is the definition of rights in economic law. This chapter mainly probes fivequestions. First, how to recognize right, which is the analysis of the logic point of the theoriesof rights in economic law. Through the exploring of etymology and contextualism of right,right is defined as the just demand of an individual in this Paper. Second, how to recognizethe relationship between right and law, which is the analysis of the theoretical frame of thetheories of rights in economic law. From the angle of logic, the relationship between right andeconomic law is a reflection of the relationship between right and law. The relationshipbetween right and law is: the right is something that makes law to be law, and the law is theguarantee of the realization of right. Third, how to recognize the concept of rights ineconomic law. On the basis of elaborating the current research on the concept of rights ineconomic law, in this Paper the concept of rights in economic law is preliminarily defined as acollection of legal rights enjoyed by the private party who is in a concrete economic statusand confirmed by economic law, to meet the need of this research. Four, how to recognize thefeatures of rights in economic law. The author holds that the features of rights in economiclaw includes the specification and identity of subject of right, the heterogeneity anduniversality of object of right, the positive externality of exercising right, the inclining ofright disposition and pluralism of the subjects of right protection, in comparison with thefeatures of traditional private right which includes the abstractness and universality of subjectof right, the homogeneity and finiteness of object of right, the parallelism of right disposition,the internality of exercising right and the unity of the subjects of right protection. Five, how torecognize the nature of rights in economic law. The author holds that rights in economic lawis possessed of both the nature of private interest and public interest, both personal and group,both the distribution and redistribution, in comparison with the traditional private rights which only possesses the nature of private interest, the nature of personal and the nature ofdistribution.Chapter two is the source and generation of rights in economic law. This chapter firstprobes the source of rights in economic law, and on the basis of reading all kinds of theorieson the source of rights as much as possible, the author thinks that we should seek the sourceof rights from the mode of production. Secondly, this chapter illustrates the historical logic ofthe generation of rights in economic law, which is described by the author as follows: thechange of the mode of production——the conflict of new types of interest——fighting for therights——renewing value judgements——the new types of right. The author holds that withthe great change of the mode of production caused by industrial revolution, the modernsociety appears the development trend of industrialization, marketization, socialization,urbanization, risk and informationization, which caused the conflict of new types of interestbetween business operators, between business operators and consumers, between businessoperators and laborers in the condition of high socialization, and the new appeal of rights andfighting for rights of the business operators, consumers and laborers who are in a inferiorposition. This situation compels the society to reflect the traditional ideas of rights, and facethe just demand of the business operators, consumers and laborers with a new value angle.Due to the limitation and paradox of the traditional private law and traditional private rights inresolving the problems of business operators, consumers and laborers, a new type of law anda new type of right are urgently needed to resolve aforesaid problems. This new law is theeconomic law and this new rights is rights in economic law. Finally, using the analytic toolsand relevant theories of law-economics and law-society, this chapter analyses the reasons ofthe generation of rights in economic law from the angles of trade cost and institutional change,the social differentiation and social integration.Chapter three is the thoughts on the typification of rights in economic law. The questionof the typification of rights in economic law is definitely one of the focus and difficultquestions in the research on rights in economic law. This chapter first, on the basis ofelaborating the current research achievements on the types of rights in economic law, probesthe basic questions of the typification of rights in economic law, i.e. the necessity oftypification, the choice of the criterion and the fixation of right form. The author holds thatthe criterions of value, subject and object have their own advantages and disadvantages, thekey point is to choose a proper criterion according to the purpose of constructing the system of rights in economic law and the features of rights in economic law. Considering that rightsin economic law is heterogeneous and the system of rights in economic law is open, theauthor is inclined to choose the criterion of subject as the basic criterion of the types ofrights in economic law, and holds that the system of rights in economic law is consisting ofbusiness operators rights, consumer rights, laborer rights and social organization rights,among which, business operators rights, consumer rights and laborer rights are primordialrights and rights of social organization such as industry association, consumers’ associationand laborers’ association are derived from aforesaid three types of rights, the purpose ofwhich is to protect aforesaid three types of rights better. Secondly, on the basis of answeringthe two questions that to be clear to identify the rights in economic law, this chapter elaboratesthe rights in China’s economic law. Finally, from the aspects of right subject, right object,obligation subject and content of right, this chapter separately analyzes business operatorsrights, consumer rights, laborer rights and social organization rights.Chapter four is the disposition of rights in economic law. This chapter mainly probes thelegislation of rights in economic law combined with the theory of value. This chapter firstillustrates two basic questions of the disposition of rights in economic law, i.e. the level andthe subject of the disposition of rights in economic law, holding that there are three levels ofthe disposition of rights in economic law, i.e. the horizontal disposition between themarketing subjects, the longitudinal disposition between the government and the marketingsubjects, and the horizontal and longitudinal disposition between the marketing subjects andsocial organizations, and the subjects of disposition of rights in economic law actuallyincludes the legislature and the government. Secondly, this chapter probes the question of theview of disposition of rights in economic law, i.e. the criterion of the legitimacy of dispositionof rights in economic law. On the basis of reading all kinds of theories on the disposition ofrights as much as possible, the author holds that the core criterion to judge the legitimacy ofdisposition of rights in economic law is to see whether the disposition of rights protects bothjust interest of an individual and the social interest. Finally, this chapter describes theprinciples of disposition of rights in economic law, holding that, in contrast with the privatelaw, the economic law shows much application of the principle of inclined disposition ofrights. The author analyzes the economic effect and limitation of the principle of inclineddisposition of rights, holding that although this principle can protect the just interest of part ofgroups and social interest, this principle has its own limitation, due to respecting the marketing law, avoiding excessive redistribution, avoiding to cause serious moral risk,excessive interventional cost and social cost. In grasping the limitation of the principle ofinclined disposition of rights, the following questions should be noticed: the first is erectingcognition of respecting the marketing law; the second is to avoid excessive dependence on thetool of redistribution; the third is to do economic analysis of the inclined disposition of rightsin advance and to do a follow-up evaluation.Chapter five is the realization of rights in economic law. This chapter mainly probes theinfluence factors, basic ways and legal mechanisms of the realization of rights in economiclaw. On the basis of clarifying the connation and judge criterion of realization of rights, thischapter first surveys the current situation of China’s rights in economic law, finding that thereare many problems in the realization of rights in China’s economic law, which are attributableto the lack of certain political, economical, cultural and legal conditions needed by therealization of rights in economic law. Secondly, this chapter analyzes the inner factors andouter factors which influence the realization of rights in economic law, holding that therealization of rights in economic law is not only influenced by political, economical, culturaland legal conditions, but also influenced by the uncertainty of economic law rules, the failureof the enforcement of economic law and the limitation of judicature of economic law. Thirdly,this chapter illustrates the basic ways to realize the rights in economic law includinglegislative ways, administrative ways, judicial ways and social ways, holding that theadministrative ways such as administrative appeal, administrative mediation andadministrative complaints, public welfare litigation, social organization mediation andprofessional arbitration are very important to the realization of rights in economic law. Finally,from the aspects of responsibility mechanism, supervision mechanism, inspiration mechanismand participation mechanism, this chapter illustrates the concrete legal mechanism of therealization of rights in economic law.