The Research On The Rule Of Soft Law In Economic Law

The relationship between the government and the market is the core issue of the development of China's market economy,and it is also a major topic of economic law.The market play a decisive role in the allocation of resources and the government will play a better role establish the direction for further handling the relationship between the government and the market.Due to the government's long-term implementation of the planning system,the restriction of the level of market management,the excessive reliance on the resources and interest mechanism of power allocation,the excessive intervention and illegal intervention of the government occur frequently during the operation of the market.Market economy is a rule of law economy,the key to change the power economy to the rule of law is to realize the rule of law in government intervention.Judging from the past path,economic law which emphasizes the "hard law" still exists shortcomings,such as rigidity of the lega l norm system,single means of legal adjustment,insufficient supply of legal legitimacy etc.The resources of economic law are embarrassed and the legal innovation is urgently needed.As a newly emerging concept,soft law has caused many academic controversies,and the nature of soft law needs further clarification.Through the three dimensions of value,norm and fact,soft law is given the value legitimacy through the process of democratic negotiation,and it also conforms to the general legal log ic structure at the standard level,and as a kind of behavior norm guaranteed by social coercion,it can produce practical binding force to the members of the community.In this sense,the soft law is the law.Soft law has the characteristics of creation m ode and institutional arrangement flexibility,non judicial centralism,unclear rank and consensus.The appearance of the soft law not only makes up for the structural defects of the previous single hard law governance,improves the legitimacy and effectiv eness of the law,but also reduces the cost of the rule of law and social development,and creates a multi,open,competitive,cooperative and win-win market governance pattern.From the institutional arrangement of economic law,the one-way governance of hard law is unable to adapt to the complex and changeable economic and social relations,also can't effectively balance the increasingly diversified interests pattern of the market,even breed more corruption and rent-seeking behavior.Rule of economic law requires not only rigid institutional arrangements,but also flexible rules.Based on the common theoretical basis and theoretical logic,the soft law system with practice and the rule of economic law have agreement in value,function and standard.In value,both advocate free consultation;in function,both tend to form a spontaneous order;in legal norms,rule of economic law provides a good institutional soil for the growth of soft law,the soft law enriches the choice of tools for government intervention to the market.From three aspects of subject,behavior and responsibility,examine the manifestation of economic soft law and characteristics of economic soft law governance.Because of the diversity of subject,the expressive forms of economic soft law can be divided into soft law norms of the government subject,market subject and social intermediary organization.From characteristics of economic soft law governance,economic soft law behavior not only has general characteristics such as legal,sociality,controllability and value,but also has its unique characteristics such as substantive fairness and diversity of means.The way to realize responsibility of economic soft law is different from hard law.It mainly relies on social coercion means such as satire,expulsion,trust,face and reputation,through mobilization of social resources and power to realize sanctions.At present,soft law governance in China's economic law has many defects.Whether administrative licensing or administrative discretion,the phenomenon of government's excessive and unjustified intervention in the market by making soft law to disrupt market order and distort the market rules is increasing.To explore the root,from legislative level,departmental interest tendency of bure aucratic government result in that soft law be created at random.From law enforcement level,corporate operation of local government leads to illegal law enforcement.From judicial level,the weak status of the court in the constitutional structure and pr oblems in the soft law text make it difficult get judicial remedy.The realization of rule of economic law needs feasible institutionalized solutions to soft law governance.Firstly,combining legal environment of government intervention in market and characteristics of government intervention,the basic principles of soft law governance should be: both soft and hard law method,but mainly soft law.Secondly,in legislation,clarify the subject,authority of soft law and procedure,advocate the consultation legislation.In law enforcement,unify and perfect the legal norms,improve legal level of soft law,design the law enforcement procedure of soft law scientifically and rationally,perfect rights guarantee mechanism,law enforcement supervision mechanism,and improve quality and skill of government officials.In addition to enhancing the actionable nature of economic soft law norms,judicial review should also be carried out.Once the legislative process fails to follow the principle of science and democratization,it will confuse boundary between government and market,it is necessary for courts to carry out more strict judicial review.The soft law of social intermediate organization,while are mostly belong to the "third scope of law" between public law and private law,Judicial intervention should adhere to the principle of independence according to law and pay attention to the degree of intervention.For the soft law of market subjects,judicial power should respect autonomy among the market subjects in dealing with such soft law disputes,keep the relative restraint and minimize the intervention.