On Private Law'spirits Assimilating Modern Public

What is public laws? What is private laws? Should there be the distinction between public laws and private laws? How should we make the distinction? Those are questions arousing much desputes in academic circle. The classification of the law system takes as its significant stride forward the distinction between public laws and private laws, which has been commonly acknowledged and applied to think about questions concerning law by law scholars. With regards to public laws, what counts as fundamental is the way public laws deal with problems and the practice of their norms; as for private laws, what functions is the means of private laws and implementation of their norms. There exists apparent distinction between the way of public laws and that of private laws. Theoretically, some scholars argue against the distinction between public laws and private law, while we think such a distinction is quite in need, and firstly in this paper analyses the necessity. Then follows the discussion pertaining to the principles by which the distinction is made. Concerning those simple law cases, it is easy to decide to adopt which ones, public laws or private laws for regulation; but about those complicated cases, it would be troublesome to make a decision. After the scrutiny of various theories distinguishing public laws and private laws, we recommend the conclusion that concerning those complicated law cases, only by integrating the analysis of law subjects, objects, and contents can a precise designation be proposed and then appropriate laws be applied. What's more, the distinction between public laws and private laws correlates with the law norms, and is not the simple correspondence to department laws, which is the aggregation of laws including public laws and private laws. Some hold the views that the Constitution functions as public laws; civil laws belong to private laws; administrative laws should be categorized into public laws; and so on. Those views are factually misunderstandings of the distinction between public laws and private laws. Some regulations in the Constitution functions as public laws, and some others as private laws. Thus it should be based on the law criteria, instead of the department laws, to distinguish public laws from private laws. Lastly, public laws and private laws mingle with each other with the development of society, public laws being assimilated by private laws' spirit and vice versa. The cross-influence between public laws and private laws is the need of coping with the practical problems concerning laws as well as of the development of socialist economy. Such is the normal advancement of law systems.In the first part is put forward a point of view that modern public laws is being assimilated by private laws and the distinction and integration of them, with the distinction determining the integration, display their relationship of dialectic unification simply for the reason that distinction is the basis for integration.)The second part starts with the comparative research on various theories concerning the distinction between public laws and private laws and their classification in accordance with elements of legal relations. Then this part points out those theories' rationality and problems existing, and that the only way to distinguish public laws and private laws resides in the synthetic application of all of them. The analysis is made concerning the problem of the correspondence between public/private laws and department laws, with the conclusion that public/private laws should not correspond with department laws but with law criteria. In the following is the discussion of the spirit of private laws and basic principles of modern public laws, the former including equality, freedom, credit and other basic spirits. The spirit of equality is a crux in private laws and also the most wanting; the spirit of freedom is the soul highly appreciated in private laws but not unlimited under the limitation of other principles; credit counts as a principle of moral but has almost been upgraded to be "the Emperor's" principle since its lift into a spirit of private laws. All these spirits come to become the basic theoretical principles of modern public law sysyem.The third part mainly concentrates on modern public being assimilated by spirits of private laws in the overall theoretical system. Firstly under the influence of private laws some basic concepts in modern public laws is gradually undergoing changes. With the development of the market economy the concept of equality has deeply rooted in people's mind and administrating for service and government chosen by public have become common senses. Therefore those power departments have converted to be the organs for public service, equal with public in social position and no more towering upon commons. The principle of equality has by now become not only the concept of private laws but that of public laws. Secondly since the openness and equal share of information are demanded in the market economy, administrative openness cannot but be practiced as a necessary measure and the concept of openness must be internalized into public laws. In addition the conception of competition should be embodied in public laws. Public power can only attained through competition and needs public's recognition and conferment instead of being granted by imperial family. Lastly the establishment of private laws is bringing forth some new legal norms, changing public law system.The Forth Part mainly consists of some phenomena appearing in the process of public laws being assimilated by private laws. The first is about the public contract, an apparent instance reflecting private laws' influence on public laws. The contract stands for the agreement reached among equal subjects, but subjects of public power have ever since been in a superior position. Thus theoretically subjects of public laws can not be equal with those of private laws, as is defined by the contract, however market economy as some motivation for economic development has removed the privilege of public power departments and complying with the need of situation public power departments gradually practice public administration by way of the contract. The second concerns the influence of public choice on public laws. The public-choice theory belongs to economics but can also be applied to solve problems existing in public law practice. This sect presents several fields of public laws that have been affected by public choice. The third, the appearance of plea bargaining and its effective application. Plea bargaining enables the introduction of negotiation spirit from private laws to public laws and in practical use it plays a significant role in some legally advanced nations. Lastly elucidation is made on administrative means, demonstrating that the increase of administrative means in public administration reflect the fact that under the influence of private laws modern public laws have in a deeper sense acknowledged some spirits of private laws and internalized them as basic approaches to handle problems.Part 5 is a summary of all these discussions. The distinction between public laws and private laws, as a fundamental question of legal theories, deserves our further research. The legal construction demands the strengthening of everyone's legal conception. The advancement of legal practice and the improvement of legal system form the basis for legal maturity, while the relationship between public laws and private laws is related to the foundation of legal system. For the construction of a country rules by laws, we should elucidate those disputed problems and consolidate our legal construction.