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On The Balance Of Interests And Debt Law Legislation

Posted on:2008-03-29Degree:MasterType:Thesis
Country:ChinaCandidate:Y D GuoFull Text:PDF
GTID:2206360215461271Subject:Civil and Commercial Law
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Interests , is relationship of contradicting or conflicting , and moderating or balancing that occur between person and person,people and need under certain social condition, when they are meeting their need through social practical activity. Interests is made of three key elements: subjects of interests,objects of interests and content of interests. Interests has subjectivity,objectivity,social,historical,contradictive and layer nature. According to different standard, interests may be carried out different classification. The human relation in society nature is indeed to be interests relation. And law in nature is adjustment norm to interests relation. Right in nature is the force appointed by law and used by the subject to enjoy special interests, i. e. the freedom of choosing behavior mode endowed by law to the subject to enjoy some interests. The relation between interests and right is that of purpose and means,content and form.Balance is a kind of equipollence engendered by two aspects of contradiction. These two aspects are not only mutually opposite but also interdependent. Balance in social field appears as special relatively stable state of special human relationships in society. The balance of interests is necessary,equipollent and relatively stable state showing out by various interests in the pattern of interest. These interests are both interdependent and mutually opposite, and thus relatively compossible. Balance of interests is of objectivity and certainty.Legislative balancing of interests, is to make the relation of various interests come to be a rational optimized state on a coexistent and compatible basis, through coordinating conflict of all respects of interests in human relations in society by legal system produced in legislative activities. This state requires that satisfying the most important interests first which need to give preferential thinking and then making other interests sacrifice least. The standard of balancing of interests is society justice. Justice is that each is in its proper place, whose nature is a category about whether the arrangement of human relations is proper or not. It is a combination of idea component and system component determined by the former. The common idea of justice comes to be the view of society justice which dominates in this society. The view of society justice may be gained through reason investigation, and its improvement and change often are the foreboding of legal reform. The content of justice includes freedom,equality,safety and common welfare. Law is synthesis of order and justice. The relation of order and justice is that of means and purpose,form and content. The balancing of interests is one kind of legislation methodology, which has difference from and sameness to judicial balancing of interests. The general formula of legislative balancing of interests is : First, distinguish and affirm the to-be-balanced various interests in human relations in society; Second, orient the interests relation to some social background so as to ascertain corresponding idea of society justice; Third, compare and balance various relative interests, assign right,duty and responsibility appropriately.Investigation and discussion about legislative balancing of interests include the following content: 1. The interests in legal relation of obligation is future and uncertain, whose target is ascertainment and realization in the future; 2. The interests relation that legal relation of obligation embodies has the following characteristics:①Certainty and relativity of the subjects of interests;②Antagonism and unity of the content of interests;③Compatibility and equality of creditors' interests;④Dynamic and uncertain nature of the development of interests relation. 3. The standard of balancing of interests of obligation law, i. e. society justice, includes the following content: A. Autonomy. B. Equality between subjects; C. Safety and order of business; D. Common wealth. 4. The value structure of balancing of interests of obligation law is balancing of game among the contents of justice, The system structure is balancing of distribution and combination of credit,debt,risk,bearing and responsibility; 5. The principle of balancing of interests in obligation law is :①Principle of ply rating;②Principle of protecting the paid interests sufficiently and effectively;③Principle of balancing of interests between the creditor and the debtor; 6. The balancing of interests in obligation law follows the general formula of legislative balancing of interests. Then carries on formulation and revision to our national debt law on the foundation of balancing of interests.
Keywords/Search Tags:interests, balancing of interests, obligation law, idea of society justice, cancellation right
PDF Full Text Request
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