The Interpretation Approach Of The Regulations Of Public Law Intervening In The Civil Law

The relationship between the public law and private law is essentially equal to the relationship between the state regulating and the social self-govermenting.Public law as a tool for state regulating,at the same time,the private law as a tool for social self-govermenting,the contesting between both of them in the judicial adjudication,reflecting the seesaw battle between the state regulating and the social self-govermenting.In the cases,the relationship between the state regulating and the social self-govermenting could be divided into three main types: the state regulating and the contractual freedom,the state regulating and the freedom of conduct,the state regulating and the freedom of private property.The traditional theory and judicial practicing experience show that the judge can realize the convergence of public law and private law in the interpretation through the referring articles existing in civil private law,so that making the adjustment of the relationship between regulating and self-govermenting becoming possible at the law applicating level.There are similar referring articles in our current contract law,tort law and property law.Its function is to empower the judge to make a specific trade-off and judgement on the validity of contract,tort liability and restriction of property right through the interpretation of the regulations.During the process of the public law intervening into the civil law,the judge should restrict the degree of public law intervening into the private law through legal interpretation,in order to maintaining the relative balance between the public law regulating and the private law self-govermenting;They also need to seizing the opportunity,using the public law to solve the problems,and realizing the connection and interaction between the public law and the private law in the concept,value and policy.