Legal Paternalism And Its Application In China

Legal paternalism represents the compulsory supervision of the government. Based on respecting the equality of personality, it is arising from a legal idea, which is intended to solve the the unfair and unequal dilemma of modern people and to promote the civic welfare and public interests. With the transformation of western laissez-faire capitalism into state capitalism, the function of government extends from economic field to legal field, from controlling market to controlling individual rights. The booming of legal paternalism is based on the establishment of developed market and commodity economy, through the vehicle of nation state, with the aim of establishing the welfare state and modern society emphasizing democracy and legal system.Considering the Chinese historical and cultural tradition, status quo, the influence of welfare country and current constitutional norm, it is possible to implement legal paternalism in certain fields. At present, this process will be delayed if it is only relied on social norm and forces without the guidance of government. Meanwhile, it may result in the unnecessary waste of social resource to deal with the accompanying different conflicts. It is required by establishment of Chinese legal system, which will provide larger room than in western to implement legal paternalism. Therefore, the study on the theories of legal paternalism has practical significance.I believe that it is necessary to have "tolerant intervention" in accordance with our national conditions. Combined with Chinese traditional moral concepts, legal paternalism should begin with differentiating common interest of society and individual interest, then equilibrium income, which will be regulated for the sack of the public interest of society. Economic law, anti-monopoly law, the frame work of social law system and the principles for coordination between different interests and policies will be established. We should harmonize the relationship between the neutral control of law, self-regulation of market, and the balance of government policies.