Urgent demand: the position of economic law in the legal system of market economy

The status of economic law is actually a question of whether economic law is a legal department. To solve this problem, we must clarify the concept of economic law, prove its independence and importance, and distinguish relevant departmental laws on the basis of theory and reality.

First, the concept of economic law

Economic law has experienced ups and downs for more than 100 years from its germination to now, and its emergence and development are accompanied by quarrels. At present, there is no unified definition in academic circles. As a theoretical thinking, we should first define economic law, which is also the primary task of economic law researchers. The predecessors have done a lot of work here. Generally speaking, the definition of economic law can be divided into two types: one is to recognize economic law as a legal department and then define it on this basis; Second, it does not recognize the independent status of economic law, and thinks that economic law is a synthesis of disciplines or norms.

The general view of denying economic law is that "economic law has no unified adjustment object and method, so neither a single economic law nor the sum of these laws and regulations can constitute an independent legal department" (1), while the affirmative school thinks that economic law has independent adjustment object and method, and insists on the status of independent legal department of economic law (2). Looking at the views of both sides, the biggest difference lies in whether the economic law is different from the adjustment objects and methods of other departmental laws, which is also the division standard of traditional departmental laws. In order to prove the independent status of economic law, some scholars have questioned the traditional division standard of departmental law, and think that the division of legal departments is not the case. Now this traditional theory has to be completely changed (3). Of course, there are also "theory of jurisdiction" and "theory of legal system". The author believes that it is not necessary for us to arbitrarily deny what we have and are recognized by everyone in order to establish a set of theories, and it is not a realistic research attitude to deny this. There is a saying in the Tang Dynasty: "The apes on both sides of the strait can't stop crying, and the canoe has passed Chung Shan Man." This poem is used to illustrate the perfect development of economic law. The independent status of economic law should be affirmed. How to interpret economic law? First, we have to talk about the law. Law is the general name of legal norms to adjust certain social relations, so economic law also exists to adjust certain social relations. Understanding this, it is not difficult to define economic law. The theory of "vertical and horizontal unification" transformed from the Soviet Union once occupied a considerable position in academic circles. The theory holds that economic law regulates the vertical economic management relationship and the horizontal economic cooperation relationship (4). This view tries to make the adjustment object of economic law more obvious, but inadvertently makes a fatal mistake, that is, the economic cooperation relationship is more the relationship between equal civil subjects, which should not belong to the adjustment scope of economic law, but to the adjustment scope of civil law. Economic law mainly starts with public power and adjusts the part of public-private combination, that is, the cross relationship between public and private. Nowadays, especially in a developing economic and democratic society like China, public power should stop somewhere, and private rights should not be too involved. Therefore, economic law should be defined as the general name of legal norms for adjusting, managing and coordinating the national economy. This concept can be analyzed and understood from the following aspects: First, economic law adjusts the vertical economic management coordination relationship, which is different from the relationship between equal civil subjects. Secondly, the main body of adjustment is the relevant economic organs of the state, that is, to get rid of the blind intervention of the administrative organs in the economy and determine some organs to carry out economic management and coordination. Although economic law is based on a certain strength, strength is not a direct means of adjustment, but a solid backing for economic management coordination.

Second, the independence of economic law.

The status of economic law boils down to whether economic law is a legal department or not. The further study of economic law is actually of great significance to the independence of economic law, which has been the focus of debate in legal circles since the last century. It can be said that economic law is a departmental law. The concept of economic law has been analyzed before, and the independence of economic law is studied below.

To judge whether economic law is a departmental law, we must establish a clear division standard of departmental law, rather than calling it departmental law regardless of reality. The division of departmental law includes object theory, object plus methodology, methodology and teleology. Most people think that the object and method of special adjustment is the standard of division. But the method is secondary to the object, and the only adjustment object is the key. Any legal department has its adjustment object, which is the fundamental symbol of dividing departments. It refers to the specific social relations adjusted by the legal department. (5) Although some people have questioned this traditional division method, he still has to admit that the basic definition of economic law should be based on the object of adjustment and its fundamental characteristics, otherwise economic law will become rootless. Just like castles in the air, the scientific nature of economic law is questionable (6). In the previous definition, it has been explained that the adjustment object of economic law is the management and coordination relationship between the state and the economy. On the one hand, the main body of this relationship is the state economic organs, on the other hand, it is the main body of market operation, from companies and enterprise groups to "households" (7). Objectively speaking, the object of economic law adjustment is a kind of social relationship, specifically, there are macro-control law (or macro-economic law), market regulation law, economic organization law and so on. Macro-control law mainly includes fiscal revenue, market regulation law mainly includes unfair competition law, anti-monopoly law and product quality law, and economic organization law mainly includes company enterprise law.

The object of adjustment basically determines the independence and particularity of economic law. In the process of economic management and coordination, adjustment means including civil and administrative aspects will be used, which will not affect the independent status of economic law. The reality is so complicated that the country has to make adjustments through various means. In addition, the economic law is not without its own adjustment means and methods, such as the punishment of "economic misconduct".

Therefore, in theory, economic law has a clear adjustment object, supplemented by certain adjustment methods, so it has independence as a legal department and should become an independent legal department.

Third, the development and reality of economic law

The first thing that economic law becomes a legal department is independence, but the reality is also an important aspect. The reality of economic law is actually the basis of the reality of economic law, which shows that the existence of economic law as a departmental law is not dispensable, but also of great significance.

The importance of economic law can be illustrated by its development. The emergence of economic law has gone through a long process. As early as more than 2,000 years ago, there were written codes, such as code of hammurabi, which contained many economic-related legal provisions. However, the law at this time is a combination of various laws, and it cannot be said that the economic law has been produced. Economic law is a superstructure relative to the economic base, and its emergence and development are inseparable from economic progress. Generally speaking, economic law came into being in19th century, and then split in the early 20th century. On the one hand, it is the "planned economic law" of the Oriental Group headed by the Soviet Union, and it has also formulated a special "economic code", such as the Czech Republic. However, with the disintegration of the Soviet Union, the planned-oriented economic law has been greatly impacted and the reality has changed greatly. Whether it is necessary to continue to adhere to the theoretical theory of the planned economy period of the former Soviet Union remains to be discussed. On the other hand, it is the economic law of capitalist countries that has evolved several times, from "wartime economic law" to "crisis countermeasure economic law" and then to a relatively mature "economic law that consciously safeguards the coordinated development of the economy". Analyzing this process, we can see that it developed along the track from liberal capitalism to monopoly capitalism. Capitalist countries have gradually realized the importance of state intervention in the economy, and at the same time, with the advancement of democratic economy, there have been some phenomena of "making private law public" and "making public law private". For example, unfair competition and monopoly cannot be solved by market regulation means regulated by civil law alone. The more developed the economy, the higher the demand for economic stability. Irregular financial management and rampant financial speculation have seriously affected a country's economic stability and development, as evidenced by the world economic crisis that began in the United States in 1929.

While the capitalist countries strengthen state intervention, socialist China is also standardizing the management of functional economic departments, gradually decentralizing power, so that people can enjoy more economic freedom, and then realize the transformation from planned economy to market economy. With the economic globalization, the economic forms of various countries gradually converge. It is on this basis that economic law has the reason to continue to exist, and it can completely deny the "stage theory" of economic law (8). The reason why the legal department is formed is that it has a spirit different from other legal departments (9), that is, it has its reality, that is, it was born to adapt to the economic reality.

Because the situation in different countries is different, the main aspects emphasized by economic laws in different countries are also different. Anglo-American legal system has no tradition of division of departmental laws, so there is no economic law department. But the fact is that the anti-unfair competition law and the anti-monopoly law are called "economic charters" and can be understood as their important economic laws. Germany and Japan have studied economic law and morality for a long time. Because civil and commercial law is dominant in the economy, people pay little attention to economic law, and even many people don't know what economic law is. However, the existence of economic law is a fact. Western countries have noticed the importance of economic law, learned from the development experience of China's economic law in recent years, strengthened the management of the national economy, and achieved certain results. Due to the influence of traditional thinking and the limitation of China's economic development level, the focus of economic law is not anti-unfair competition but finance and taxation. From the perspective of economic development, this situation will gradually change.

The importance of economic law lies in its reality. The economic base determines the superstructure, and the legal department based on reality is reasonable. Facts have proved that it is impossible to maintain the steady, healthy and rapid development of the national economy only by planning or market regulation. What economic law wants to solve is the relationship between market and public rights, which is also the significance of economic law. Public power has strong tension and destructiveness, and its intervention in the market and economy must be defined in a reasonable order according to law. Overcoming "market failure" and "public failure" is the dual task of economic law (10). On the other hand, the state is also an organization of society after all. While exerting its economic function to plan, guide, control, regulate and supervise the social economy, it also tends to "rent-seeking" for its own interests, so that the scope and procedures of economic power are restricted by economic law, so as to prevent it from giving up or abusing its representation and infringing on and deviating from social interests (1 1). Generally speaking, due to the failure of the free market economy, the country has changed from a "political country" opposite to civil society to an "economic country". Economic law is a derivative of economic countries. However, the situation in China is not so much a market failure as a lack and imperfection of market mechanism. The orientation and goal of the reform is to reform the original planned economic system and introduce the market mechanism in an all-round way, rather than or mainly to correct the market failure or overcome the blindness and limitations of market regulation (12). We are more concerned about the so-called "public failure", decentralization and creating a good and orderly competitive environment. In a word, the realistic mission of economic law is to adjust the rights and obligations of public-private integration and fill the gap of legal adjustment brought about by social development.

Proceeding from reality, the economic law must adjust and standardize the following aspects:

The first is macro-control. Economic law is a law of balance and coordination (13), and it is very important to coordinate and deal with the contradiction between the will, behavior and interests of the whole society and social individuals through management. To achieve this, we must attach importance to the macro-control of the economy by the state economic departments and realize the optimal allocation of resources based on the market and supplemented by state control, which is commonly called "Pareto optimality". This aspect is mainly reflected in formulating economic policies according to certain procedures, such as the adjustment of interest rates and tax rates. Macroeconomic adjustment is conducive to overcoming the blindness and lag of the market and minimizing the damage caused by "market failure".

Second, market competition. The vitality of market economy comes from competition. Without competition, there will be no rapid development and utilization of new technologies and the economy will slow down. Therefore, maintaining and encouraging normal economic competition is an important mission of economic law. But at the same time, the developed nature of the market economy determines that some economic entities stand out from the competition, gradually gain a comparative advantage position, and even go to monopoly, while monopolists will maintain their monopoly prices to deprive consumers, and what is more serious is that technology and services will stop. In addition, vicious competition harms the interests of equal civil subjects and the whole market competition mechanism. In this regard, the traditional civil law adjustment is obviously insufficient.

Finally, the adjustment of economic law provides a guarantee for the stability of the market and the national economy. The more open and developed the market, the higher the requirement for stability, especially in the financial system. If financial supervision is weak, it will lead to rampant financial speculation and seriously affect economic stability. The Asian financial turmoil of 1998 is a typical example. Therefore, economic law must be regulated and supervised from two aspects: subject qualification and program operation.

Of course, there are still many places that need to be adjusted by economic law, and it is impossible to elaborate them here.

In a word, economic law is in line with the times and is the guarantee of social and economic development. The objectivity of economic foundation determines that the economic law department must exist and play its role.

Fourth, the relationship between economic law and relevant departmental laws.

In front, the independent status of economic law is expounded theoretically based on the division of departments, and the importance of the existence of economic law is analyzed and demonstrated. However, if we want to further clarify the status of its departmental law, we must compare it with the adjacent departmental law. It is difficult to say that economic law is an independent legal department without distinction. Economic law involves public and private rights. On the one hand, it is inextricably linked with civil law. On the other hand, its main body is the administrative organ, which is closely related to the administration. Therefore, accurately distinguishing economic law from civil law and administrative law can explain that economic law is an independent legal department. Comparatively speaking, there is no need to compare other departmental laws. Limited by space, this paper does not intend to compare with departmental laws other than civil law and administrative law.

Compared with civil law, the subject of the relationship between the two sides is obviously different. Civil law regulates the property relationship and personal relationship between equal subjects, while economic law regulates the economic management coordination relationship between unequal subjects, which has nothing to do with personal relationship. A clear distinction between economic law and civil law is to let public rights not interfere with private rights and let market economy play its greatest role according to the law of value. Economic law and civil law are not antagonistic. Economic law is an important supplement to civil law. It can be said that civil law is the foundation of economic law and economic law is the guarantee of civil law. For example, in the protection of consumers' rights and interests, civil law adjusts the relationship between merchants and consumers as equal subjects, but the general principles of civil law ignore that the relationship between equal civil subjects may be equal or unequal. Obviously, businesses have an absolute advantage in information power. If they are completely adjusted according to civil law, it is obviously not conducive to the protection of consumers' interests. In this case, the power of the state or society must intervene in this relationship.

As we all know, the narrow civil law does not include commercial law, which is a special civil law that appeared later. Although there is a difference between the separation of civil and commercial affairs and the integration of civil and commercial affairs, there is no objection that the commercial law belongs to the broad civil law. Its basic value concept is the same as that of civil law, and the object of adjustment is still the relationship between equal civil subjects. Without this, commercial law is not civil law. It is generally believed that commercial law includes company law, insurance law and maritime law. But these are also included in the scope of economic law. How to distinguish between commercial law and economic law? In order to solve this problem, some scholars have studied the source of commercial law, and think that commercial law is not a very standard name, that is, there is no commercial law. It is suggested that the part that adjusts equal subjects should be included in civil law and the rest should be included in economic law (14). The author thinks this is completely unnecessary. The existing formulation of civil and commercial law is * * * knowledge, so the relevant laws belonging to commercial law can be regulated by economic law, but the research angles of the two sides are different. Commercial law can be stipulated and studied from the aspects of subject qualification and power autonomy, while economic law can be stipulated and studied from the aspects of economic organization and competition norms. Commercial law and economic law are not contradictory, they complement each other, and the key to the difference lies in the different subjects of adjustment.

Compared with administrative law, there are similarities between them, which is the most difficult and long-standing problem for the author to solve the subject status of economic law, but the differences between them still exist. Administrative organs have administrative and economic functions, that is to say, the state is the ruler on the one hand, the manager and organizer of business activities on the other hand, and in some cases, the participant of business activities. Its administrative function is regulated by administrative law, and its economic function is regulated by economic law. Content of traditional administrative law

Complexity is not conducive to improving the efficiency of administrative organs and standardizing administrative behavior. Some things in the original administrative field should be separated and incorporated into new legal departments such as economic law to adjust, while some immature laws and regulations that have not formed a legal system remain in administrative law, and finally the rest are adjusted by administrative law. Therefore, the administrative law should stipulate the organization and authority of the administrative organs, and stipulate the administrative remedies when citizens are infringed by the administrative organs (15). Therefore, the distinction between economic law and administrative law can be made from the following three aspects: first, from the perspective of adjustment objects, administrative law only adjusts administrative relations that occur in administrative activities, such as public security management relations and personnel administrative relations. The economic law regulates the management coordination relations in economic activities, including industrial policy management relations and industrial and commercial management relations. Thirdly, from the perspective of adjustment methods, the scope of economic law is broader, involving not only civil law and administrative law, but also its unique methods, and economic law is more indirect in macro-control. Finally, the norms of economic law are more professional and complex.

Verb (abbreviation of verb) abstract

The above analysis has demonstrated the status of economic law as an independent legal department, but the times are developing and the reality is changing. We must constantly strengthen the study of economic law to make it better serve the society. Just like the reality of economic law discussed earlier, economic law is produced in line with reality, and it will develop with the development of the times and play an important role in the national economy as an independent legal department.