The division between public law and private law? Best detailed paper!

On the division between public law and private law: subject classification; general rules of civil law

Source: Collection of Philosophy and Social Sciences in Capital University, Intellectual Property Press, June 2005.

Starting with a case, this paper briefly discusses the difference between public and private law and its significance in real social life, then carefully analyzes the origin, development and standards of the division of public and private law, and emphatically points out the five meanings of the division of public and private law.

Keywords:: the significance of dividing standards of public law and private law

Year of writing 2004

main body

The division between public law and private law has a long history. However, due to the misunderstanding of China's ideology in the past, we once denied the distinction between the two, and even denied private law. With the gradual deepening of the construction of China's socialist market economy, the voice of strengthening the construction of the rule of law will be higher and higher. At present, China has initially established a relatively complete legal system of socialist market economy. Nowadays, we can no longer deny private law and the division between public law and private law because of ideological reasons. Starting with case analysis, this paper explains that the division between public law and private law has been widespread in real life, and then discusses in detail the origin, development, standards and significance of the division between public law and private law, hoping to trace back to the source in theory and get rid of the false and keep the true.

Case: A drunk driving, knocked down B, causing serious injuries and escaping. Passerby Ding sent B to C's clinic for treatment, and C refused treatment on the grounds that B did not pay the deposit. Question: ① What right does B have to claim A? ② What kind of criminal responsibility should A bear? ③ Can the competent authority of Party A revoke Party A's driver's license? (4) What right does Ding have to claim from B? (5) What right does B have to claim C? ⑥C What punishment should the competent authority impose on it? ⑦ What is the difference between the court jurisdiction and the relief procedure involved in the above situation? The application of the above laws belongs to public law? What is private law? What are public law and private law? What is the standard and significance of its division?

Analysis: ① In the above cases, whether Party B claims damages from Party A is a civil case shall be accepted by the civil court of our hospital and carried out according to civil procedures. Party B has the right to claim compensation for infringement damages from Party A, which is based on the provisions on infringement in the General Principles of Civil Law. Belongs to private law.

(2) Party A's drunken driving causes serious injury to Party B and escapes, which violates the traffic accident crime stipulated in Article 133 of the Criminal Law, and shall bear criminal responsibility according to law. If it is a criminal case, it shall be accepted by the criminal court of our hospital and carried out in accordance with the criminal procedure. It belongs to public law.

(3) According to the Regulations on Traffic Management Punishment, if drunk driving causes serious injuries, the driver's license shall be revoked. Traffic law enforcement departments can revoke A's driver's license according to law. This is an administrative punishment case, which is handled in accordance with the Administrative Procedure Law, that is, the Administrative Punishment Law. It belongs to public law.

(4) D can claim rights from B, and its claim is based on the debt of negotiorum gestio. That is to say, D can claim the right of expenses or losses caused by negotiorum gestio from B. This is a civil case, which is accepted by the civil trial court of the court and carried out in accordance with the civil procedure. Belongs to private law.

⑤ Whether Party B can ask for relief from Party C depends on what kind of obligation Party C has in law and whether Party B is harmed by Party C's violation of this obligation. As a doctor, C shall not refuse to treat patients, and shall have the obligation of compulsory contracting. The so-called compulsory contracting means that an individual or enterprise is obliged to conclude a contract with the counterpart at the request of the counterpart. In other words, unless there is a legitimate reason, you must not refuse the other party's offer; If you refuse to promise or conclude a contract, then the other party can bring a lawsuit. If an individual or enterprise with contracting obligation refuses to conclude a contract and causes losses to the other party, it shall be liable for compensation. There are usually two kinds of behaviors to enforce the obligation to conclude a contract: one is to ask the party with the obligation to conclude a contract to accept the offer or acceptance; The other is a lawsuit that refuses to promise damages without justifiable reasons. The Law on the Administration of Physicians stipulates that doctors shall not refuse to make diagnosis, treatment, examination or adjust prescriptions unless there are justified reasons. In this case, C refused to receive treatment on the grounds that B failed to pay the deposit, and whether the failure to pay the deposit was a legitimate reason was the focus of controversy. The author believes that not paying the deposit cannot be regarded as a legitimate reason. Because the law stipulates that doctors' compulsory contracting obligation is based on their concern for people's life and health rights, it is against this principle to refuse treatment without deposit at will; Besides, saving lives is a doctor's duty! Therefore, in this case, if B suffers from C's refusal to treat, then B can claim damages from C ... This is a civil case, which is accepted by the civil court of the court and carried out in accordance with the civil procedure. Belongs to private law.

6. According to the provisions of the Law on the Administration of Physicians, if a doctor refuses to make illegal diagnosis and treatment, and the consequences are serious, the competent department may revoke his business license. The health department may punish C according to the situation. This is an administrative case, which shall be handled in accordance with the Administrative Punishment Law. It belongs to public law. As for the meaning, division standard and significance of public law and private law, it will be discussed in detail below.

First, the origin and development of the division of public law and private law

The division between public law and private law is a basic legal classification recognized by civil law countries. It originated from Roman law and was initiated by Roman jurist Urbian. Taking the interests safeguarded by law as the standard, he divided the law into public law and private law, and thought that "public law stipulated the situation of Roman countries (such as state institutions, religious institutions and their affairs, which involved the stability of the country. Author's note) ","Private law is a regulation about personal interests ". This division reflects the understanding of the opposition between the state and the individual and the intention of the law to safeguard the space of individual interests. This concept influenced Roman law and strengthened the development of private law. Justinian's General Theory of Law stipulates: "Legal research is divided into two parts, namely public law and private law. Public law involves the political system of the Roman Empire, and private law involves personal interests. " ②

By the19th century, with the development of capitalist commodity economy, Roman law was inherited and the classification of public law and private law was widely used in the process of codification and legal reform represented by France and Germany. After the establishment of political power in capitalist countries, all countries have formulated and reformed their legal systems based on Roman law and combined with their own reality. When jurists began to seriously study the existing legal norms and systems, the division between public law and private law became an important consideration for them to rebuild their legal system. If the division between public law and private law was only preliminary in Roman law era, lacking mature and systematic jurisprudence and deep material life foundation, then in the process of continuous improvement of political system and rapid development of commodity economy after the establishment of capitalist system, while establishing modern legal system in continental European countries, the division between public law and private law has more urgent theoretical needs and stable and lasting life foundation. Today, the classification of public law and private law is deeply rooted and extremely popular in civil law countries, and it is intertwined with the cultures of various countries. In explaining this problem, American jurist Meliman thinks: "Jurists' papers, monographs and works of law school students generally involve this dichotomy discussion, and scholars and students often take authoritative opinions that have appeared in past discussions as a reliable basis for discussion. As soon as students from European and Latin American law schools step into the college, they encounter the classification of public law and private law, and often absorb them uncritically, thus quickly forming their own legal views on this basis. " ③

Second, the division standard of public law and private law.

Up to now, there is no conclusion on the standard of dividing public law and private law. Swiss scholar hollinger listed as many as 17 different theories, and German scholar Waltz also listed 12 theories, which shows the difference of their views. (4) This paper only introduces several main viewpoints and comments on them.

Interest theory, that is, public law is the purpose of protecting social public interests and private law is the purpose of protecting private interests. Urbian advocated this theory. The theory has the following defects: first, the terms of public interest and private interest are difficult to determine and are not convenient for specific application. Second, any law will give consideration to public interests and private interests. Although criminal law belongs to public law, it also has the function of ensuring the safety of private life and property, that is, private interests; Although civil law belongs to private law, it also has the public welfare of protecting transaction safety, social ethical order and economic order. Therefore, whether it is public law or private law, its purpose is not only to promote or protect some public or personal interests, but to properly balance the interests of all parties and create a just and just situation.

According to the theory of application, what is stipulated by law and private intention is not allowed to be abandoned or modified at will, that is, "public law cannot be modified by private letters"; On the contrary, it is private law. The applicable theory is technically very simple, but it can't explain the substantive reasons of legal division.

According to the subject, one or both parties to the legal relationship are public law, and those parties to the legal relationship are private law. This theory was advocated by German scholar Jerunek. This theory is still flawed, and the state or other public authorities sometimes conclude sales, leasing or transportation contracts with private individuals, such as government procurement; Private people sometimes exercise public power over other private people from the standpoint of the state. For example, the Maritime Law stipulates that the captain can exercise police power in order to maintain maritime safety.

The theory of nature, which takes the nature of legal relationship as the distinguishing standard, can be subdivided into three theories: (1) the theory of power relationship, that is, public law stipulates unequal relationship or power obedience relationship, while private law stipulates equal rights and obligations relationship. This statement cannot explain international law, which is a public law but stipulates the equal rights and interests between countries. (2) Domination theory, that is, the relationship between national sovereignty is public law, and the relationship between non-sovereignty is private law. The defect of this theory is that sovereignty is not easy to determine and operate. (3) the theory of life relations, that is, private law, such as buying and selling, marriage, inheritance, etc. , adjust the life relationship (private life relationship) of citizens as part of their own qualifications; As a member of the society, all the norms of social life relations (public life relations) are public laws, such as being an official, paying taxes, performing military service, etc. Critics believe that this idea is actually difficult to operate.

The new subject theory holds that all legal relations with the state or public organizations as their two sides or one side are public laws and are all legal relations based on the subordination of power; Only by adjusting the relationship between private individuals or private groups and based on equal relations is private law. This is a compromise theory, which is more convincing. ⑤

Generally speaking, the so-called public law is the law to safeguard the interests of the country and the whole society. It mainly adjusts the relationship between state organs, state organs and private individuals, private groups and the interests of the whole society. This normative adjustment is based on and characterized by power obedience. One of the parties to a public law relationship must be a state organ or an institution granted public power by a state organ. Constitution, criminal law and administrative law all belong to the category of public law. The so-called private law is a law that protects the interests of all private individuals or private groups. Social relations in the private sphere unrelated to state power are regulated by private law. This normative adjustment is based on equality and voluntariness. The parties to the private law relationship must be the subjects engaged in private law activities, including the government engaged in private law activities, such as the government buying bulk office supplies in the market and issuing government bonds. Civil law and its derived commercial law belong to the category of private law (civil law is the common law in private law, and commercial law is the special law in private law).

It is worth noting that the division between public law and private law is impacted by legal monism and ternary theory. Austrian jurist kelsen advocated monism. He believes that the division between public law and private law is unnecessary and the law should be unified. He also pointed out that the relationship between the state and its citizens is essentially a relationship of rights and obligations, rather than power obedience. Although monism pays attention to the unity of law, monistic law does not exist in reality. German scholar Pawlowski proposed to replace the traditional dichotomy with the dichotomy of public law, private law and social law. Ternary theory is quite influential in German academic circles at present. Ternary theorists have noticed some practical developments of contemporary law, that is, the interlaced form of public law and private law has produced new types of jurisdictions as intermediate fields, such as labor law and economic law. The appearance of social law shows that the law has broken through the traditional binary division to a certain extent and is moving towards a finer adjustment goal. However, the traditional dichotomy is not outdated. Because the basis of the division of public and private law is to recognize the existence of opposition between individuals and the state and attach importance to the independence and interests of individuals. As long as the country exists, this foundation will not disappear; Furthermore, there are two different social relations, two different judicial organs and two different litigation procedures in social life. At present, this judicial system and litigation channels (civil litigation, criminal litigation and administrative litigation) have not changed.

Third, the significance of the division between public law and private law.

Generally speaking, the basic significance of the classification of public law and private law lies in facilitating the application of the law. The practical advantage of distinguishing between the two is that it is convenient to determine the nature of legal relationship, what legal provisions are applicable, what remedies or sanctions are adopted, what courts or tribunals accept cases, and what litigation procedures are applicable. When talking about the classification of public law and private law, Mr. Liang Huixing said that the division of law into public law and private law is a great achievement of the development of human civilization. He also quoted the German scholar kyrk as saying that the difference between public law and private law is the basis of the whole legal order today. ⑦ If this distinction is confused, or even the essential difference between public law and private law is ignored, law as a social regulator will fail, and social relations and social order will be chaotic. Specifically, the division of public law and private law has the following different meanings.

(1) From the focus of interest protection, public law aims to safeguard public interests, that is, "public welfare", while private law aims to protect individual or private interests, that is, "private interests".

The "interest theory" used to be a powerful theory to divide the standards of public law and private law, and its basis was the objective existence of diversification and multipolarization of interests. Rawls Pound divided interests into three categories: personal interests, public interests and social interests. The bond between law and interest is the behavior of the interest subject. The behavior of legal subjects is related to the pursuit of certain interests, and everything people fight for is related to their interests. The protection of legitimate interests by law is achieved by formulating appropriate standards of behavior.

The public interests protected by public law are, firstly, the specific and special interests beyond private subjects, and secondly, the balancer of other interests, which acts as a legitimate and reasonable excuse for the government to implement regulation and intervention when other interests conflict. The existence of public interest is to maintain the existence of * * * in the same subject, which is the highest and fundamental interest between the same subjects. As far as the actual situation is concerned, the public interest maintained by public law is manifested in the basic human survival values and institutional environment such as order, security, justice and freedom among the same subjects in various societies.

The subjects of private law seek their own independent private interests in the field of social relations adjusted by private law, including property interests and personal interests. It is worth noting that the state should be strictly distinguished as a manager and as a property owner. When a country appears as a special subject of private law, such as issuing treasury bonds in the name of the country, accepting unowned property or acquiring property that no one inherits, the country pursues not the national interests in the general sense, but still the private interests in private law, which is determined by the multiple legal identities of the country.

(2) From the perspective of adjusted social relations, that is, objects, public law adjusts various relations between the state and citizens, and between the government and society, which are mainly reflected in political relations, administrative relations and litigation relations. Private law regulates the civil and commercial relations between private individuals, that is, the property relations and personal relations between equal subjects.

Generally speaking, in the relationship between the state and citizens, the government and society, the state and the government are representatives of public power. They manage all kinds of social public affairs and provide services for the people. However, these management and services are not arbitrary by managers, but should be included in the scope of the rule of law. The basic content of public law exists to regulate state power and government behavior, and its fundamental purpose is to safeguard private rights by controlling public power. Different from the unequal social relations between China's family and citizens, government and society in public law, the so-called overall civil and commercial relations in private law are property relations and personal relations between equal subjects. It is the legal embodiment of people's daily private life. The legal adjustment of civil and commercial relations follows the basic principles of independence of personality, equality of status, voluntariness, fairness and honesty, and the legal "existence" of the subjects of civil and commercial relations is generally indistinguishable, abstract and equal.

(3) Public law takes power as the axis and strictly abides by the law of "legal power"; Private law takes rights as the core and applies the logic of "presumption of rights".

Law has two functions on power, one is to grant, and the other is to limit or restrict. Power can only be exercised if it is granted, and the operation of all power must be based on public opinion and will, and be clearly fixed in the form of law, that is, "power is legal", "ultra vires is invalid" and "law cannot be done without authorization". In a society ruled by law, the meaning of "statutory power" means that all public power must be obtained and exercised from the law, and state organs may not exercise powers that are not granted and prohibited by the law. Statutory power also shows that people should be cautious about power. Because power is the most likely to induce the ugliest and greediest thing in human nature, it is corrosive, alienated, expansionary and infringes on private rights objectively, and all people who have power may abuse it. Therefore, it is the proper meaning of the rule of law to decompose, restrict and restrict power and strictly supervise the use of power, which is mainly carried out through public law. In a country's legal system, public law is most directly related to the establishment, distribution, exercise, restriction and supervision of power.

Private law confirms and protects the private rights enjoyed by private law subjects, that is, civil and commercial rights. Property rights, personal rights and many specific rights derived from these two types of private rights constitute the most basic human rights. Private law advocates "right standard", and private law is the law of rights. The system of right subject (natural person and legal person), right rule system (property right, creditor's right, personal right, inheritance right and intellectual property right), right exercise system (legal act system and agency) and right protection or relief system (civil liability system) constitute the basic contents of private law. Private law pursues "freedom without prohibition" as the golden rule, and uses it to analyze, evaluate and judge specific personal behaviors. "Presumption of rights" means "if there is no way", and acts that are not explicitly prohibited by law are usually freely implemented by private law subjects. The more developed the society and the higher the level of civilization, the more opportunities people have for freedom and the greater the scope of presumption of rights.

(4) Public law pursues the concept of "state or government intervention", while private law follows the principles of "autonomy of will" and "autonomy of private law".

Administrative law advocates the government's leadership and management of various administrative affairs; Criminal law applies the principle of national prosecution to most criminal acts; Economic law emphasizes the state's regulation and intervention in market economic activities; In the course of litigation, the parties' application for withdrawing the lawsuit must be approved by the court, which obviously embodies the concept of public law intervention in China or the government. Because public law has a strong color of state intervention, public law norms become mandatory norms. In order to better implement the concept of state or government intervention, the following questions should be solved in the practice of rule of law: What are the reasons and basis for intervention? What is the scope and degree of intervention? What is the form and purpose of intervention? Wait a minute.

The principle of "autonomy of will" or "autonomy of private law" is the soul of private law, which is often regarded as "the highest principle governing the whole private law", "the foundation of private law", "the fundamental value of private law" and "the source of legal action effectiveness". It is generally believed that the so-called autonomy of private law means that individuals form their own legal rights and obligations according to their own will. Specifically, the principle of autonomy in private law holds that all legal relations in private law can and should be decided by everyone freely and responsibly according to his own will. This principle is a general principle in private law, which is manifested in all aspects of private law. First of all, it recognizes that everyone is equal, everyone has independent and complete legal capacity, and every normal person (except children and mental patients) has completely independent legal capacity, which should be respected. Therefore, everyone has the freedom of legal action (including freedom of contract), everyone is only responsible for his own actions (negligence liability), and everyone's rights (including ownership) should be freely exercised and respected by everyone (ownership is inviolable). The main contents of these principles of autonomy in private law constitute the four basic principles of modern civil law: equality of personality, freedom of contract, negligence liability and absolute ownership (the principle of inviolability of private ownership).

The theoretical basis of autonomy of private law lies in: under the condition of market economy with increasingly complex social relations, the subjects of private law are all people who advocate different specific interests, everyone is the best judge and practitioner of his own interests, and everyone knows his position in social life. Therefore, the law should proceed from the belief of respecting, caring for and protecting people, and fully believe that individuals can treat and handle all matters related to their interests soberly and rationally, and the state and others should respect individuals' free choice without interference and restriction. When the government forces or intervenes in private affairs for higher value or public welfare, there should be justified reasons. In short, under the light of autonomy of private law, private law not only maintains the freedom of private choice, but also makes rational use of human selfishness, so that individuals can promote social progress and economic development while pursuing and realizing their own legitimate interests.

(5) Public law takes political state as its functional space, while private law takes civil society as its functional domain.

Public law is the law of a political country, and private law is the law of a civil society. The state was established to serve the civil society. Without civil society, the country has no real meaning. Defining the law of civil society as private law is to prevent people from demanding civil society according to the standards of membership in political countries, that is, to distinguish civil activities from political activities. The separation between political state and civil society is the product of social changes in modern Europe. The existence of civil society is the premise of the existence of western society ruled by law. Hegel and Marx are the epitome of modern civil society thought.

Hegel believes that civil society is a whole composed of private life fields and their external guarantees. Individuals are the basis of civil society activities, and social organizations developed from production and communication occupy an important position in civil society. The civil society understood by Hegel is actually a production exchange system under the conditions of private ownership (individual ownership) and division of labor; It is a process of self-interest and mutual benefit for members of society (citizens) on the premise that everyone is for me and I am for everyone. ⑨

In Marx's thought of civil society, civil society is a "private interest system" or the sum of special private interests, including all fields except political countries, and is essentially a "non-political society". Marx's theory of civil society emphasizes that civil society is an abstraction of private activities, which corresponds to an abstract political country in the field of public affairs. Because social interests are divided into two relatively independent systems: private interests and public interests, the whole society is divided into two major areas: civil society and political state. The former is the sum of special private interests, while the latter is the sum of common public interests. ⑩

The idea of separating civil society from political state is a description of the diversity of human social life and the existence of human multifaceted society. It is still not out of date to explain our current living conditions with the theory of civil society as a western civilization. Everyone in real life has a dual identity or status: on the one hand, he is a member of the political state, that is, a citizen, who participates in all necessary activities of the political state and his behavior is regulated by public law; On the other hand, he is also a member of civil society, that is, a private person, who conducts various civil and commercial activities with others with equal legal status in the field of civil society, and his behavior is regulated by private law. Taking the legislative reality as an example, the constitutions of various countries stipulate the basic rights and obligations of citizens rather than natural persons, which citizens should have as members of political countries. Civil law recognizes the property rights, personal rights and corresponding obligations of natural persons, which is necessary for natural persons to engage in civil activities as members of civil society, that is, subjects of private law.

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