On the practical necessity of adhering to the principle of fairness and mutual benefit in international economic law

Jing, Dongbei University of Finance and Economics Law School

As an important part of law, legal principles play an extremely important role in the emergence and operation of law. At the level of international economic law, it is difficult to formulate a single legal norm to bind all parties, so the basic principles of international economic law show more important significance. As an important basic principle of international economic law, the principle of fairness and mutual benefit has its concept, jurisprudence, function, significance, effect and reality.

Keywords: the basic principles of international economic law, the necessity of fairness and mutual benefit

As one of the basic principles of international economic law, the principle of fairness and mutual benefit has profound connotation and practical necessity. In international economic communication, it is impossible to have an international mandatory legal rule at present, and the principle of fairness and mutual benefit of international economic law plays an extremely important role in the development of international economic relations and international economic law; With the development of international economy and the strengthening of globalization and integration, the principle of fairness and mutual benefit in international economic law is very beneficial to the economic development of all countries. Since the turn of the century after World War II, most countries, especially developing countries, have urgent requirements for establishing a new international economic order, and the principle of fairness and mutual benefit is the basic content and requirement for establishing a new international economic order.

Connotation of the principle of fairness and mutual benefit in international economic law

19741February 12. The Charter of Economic Rights and Duties of States adopted by the 29th United Nations General Assembly stipulates in Chapter I the basic principles of international economic relations: "Economic relations between countries, like political and other relations, should be guided by the following principles, including: (e) fairness and mutual benefit; ..... "Clearly regard the principle of fairness and mutual benefit as the basic principle of international economic relations.

At the same time, Article 10 of Chapter II of the Charter stipulates: "All countries are equal in law. As equal members of the international community, they have the right to fully and effectively participate in the international decision-making process to solve world economic, financial and monetary problems, including through relevant international organizations and according to their existing and future rules, and share the benefits arising therefrom fairly." This desire and regulation are closely related to the interests of all countries and constitute the rich connotation of the principle of fairness and mutual benefit.

Requirements of the principle of fairness and mutual benefit

First of all, sovereign countries are required to become equal subjects in international economic relations at the same level. Fairness and mutual benefit, first of all, must be equal in subject qualifications, so as to talk about fairness and mutual benefit at other levels.

Secondly, all countries have the right to participate in the formulation of international economic rules and international economic relations and independently manage foreign-related economic activities.

Finally, the results of economic exchanges between countries and the management of foreign-related economic activities are not only equal and mutually beneficial to all subjects of international economic law, but also fair and mutually beneficial, and all subjects of international economic law share the benefits arising from their participation in these activities fairly.

Third, the practical necessity of adhering to the principle of fairness and mutual benefit.

As the basic principle of international economic law, the principle of fairness and mutual benefit plays an important role in the current international economic development and China's reform and opening up. It is very necessary to adhere to the basic principles of fairness and mutual benefit.

(a), from the principle of fairness and mutual benefit.

The principle of fairness and mutual benefit came into being to meet the requirements of establishing a new international economic order.

1974 in may, the fourth part of the declaration on the establishment of a new international economic order adopted by the sixth special session of the United nations general assembly stipulated that the new international economic order should be based on full respect for the following principles: … (2) all members of the international family should cooperate in the broadest way on the basis of fairness, thus making it possible to eliminate the existing gaps in the world and ensure prosperity for all; ……

Although human society has entered 2 1 century, the old international economic order left over from history is still deeply rooted in many aspects. In international economic exchanges, economic powers still have a good market. There is still a long way to go to establish a new international economic order.

As a requirement of the principle of fairness and mutual benefit, the new international economic order has not been fully established. In reality, it is of course necessary to adhere to the principle of fairness and mutual benefit in international economic relations and international economic law. The establishment of a new international economic order, as an unavoidable issue in international economic exchanges, must follow the principle of fairness and mutual benefit.

(2) From a legal point of view.

Legal principle is a rule stipulated by law for legal reasoning. Principles originate from rules and are higher than rules, which embodies the spiritual essence of rules. Although legal principles do not stipulate a definite factual state or specific legal consequences, they are indispensable in the process of creating, understanding or applying laws.

As one of the basic principles of international economic law, the principle of fairness and mutual benefit can guide the subjects of international economic and legal relations how to apply rules correctly. In the absence of corresponding legal rules, it can replace rules as the norm of international economic exchanges, and it will certainly be able to cope with the new situation where there are no ready-made rules to apply, with flexibility.

The principle of fairness and mutual benefit runs through the legal norms regulating international economic relations, embodies the basic spirit and value orientation of international economic law, and is the basic standard for judging the basic principles of international economic law. Because it is impossible to be backed by coercion, we can only use a principle of fairness and mutual benefit to measure the fairness of international economic relations. Compared with domestic laws, its role is more fully reflected in the guidance of law-abiding.

In reality, in the process of creating international economic legal documents, many economic powers either formulate clauses that harm others and benefit themselves, or interpret some clauses in international economic legal documents according to their own needs. Due to the gap in national economic strength, many developing countries sometimes suffer from innovation and sometimes suffer from remedial measures afterwards. Therefore, at this stage, we should adhere to the principle of fairness and mutual benefit, let big countries be wronged in "reason" and urge them to consider the interests of developing countries. When participating in the formulation and revision of international economic and legal documents, developing countries should also make full use of this principle to safeguard their own practical and long-term interests.

(3) From the perspective of the relationship between the principle of fairness and mutual benefit and other basic principles of international economic law.

International economic law has a series of basic principles, among which the principle of economic sovereignty is the basic principle, as well as the principle of global cooperation and the principle of abiding by agreements.

The principle of fairness and mutual benefit is closely related to the principle of economic sovereignty. They are inseparable and cannot be treated separately. The principle of economic sovereignty is the foundation. Without economic sovereignty, there is no fairness and mutual benefit. On the other hand, only by implementing the true principles of fairness and mutual benefit can the country's economic independence and sovereign integrity be guaranteed. In reality, it is difficult for many countries with weak economies to achieve real economic sovereignty through sovereign equality, so it is necessary to correctly adhere to the principle of fairness and mutual benefit in reality.

For global cooperation, keeping the contract must be carried out on the premise of fairness. Otherwise, it is unreasonable to cooperate at a loss and keep an unfair agreement.

(D) From the perspective of the significance and role of the principle of fairness and mutual benefit in international economic law.

First of all, as a member of the international community, win-win is the most ideal, the greatest benefit is what every country pursues, and no loss is the bottom line of every country. Mutual benefit exists only to create a win-win environment; The existence of fairness is the guarantee of not losing money. Therefore, in reality, the principle of fairness and mutual benefit is attractive to the bilateral international economy, conducive to the overall development of both sides and even the development of all parties, and of great significance to the development of the international economy.

Secondly, the principle of fairness and mutual benefit has the function of implementing and consolidating the original equal relationship for countries with similar economic strength and basically equal international status; For countries with disparity in economic strength and unequal international status, it has the function of correcting the original unequal relationship and establishing substantive equality and mutual benefit.

Finally, the principle of fairness and mutual benefit runs through all fields of international economic law. In international trade, investment, taxation, finance and other aspects, the principle of fairness and mutual benefit can not only promote its scale expansion, but also play an important role and significance in its benign development.

(5) From the actual effect of the principle of fairness and mutual benefit.

In international economic relations, the best practice of the principle of fairness and mutual benefit is the universal preferential system for developing countries in international trade. Although the universal preferential treatment system is not stipulated in international treaties, it is considered as a temporary measure based on the "self-choice" of developed countries. However, since this system has been put into practice by many developed countries and embodied in some important international documents, we might as well think that this system has become an international practice.

Of course, the GSP is only a tax treatment at present. With the continuous reduction of tariffs, the significance of GSP to developing countries will become less and less, and developing countries should strive for more non-tariff "GSP", which has been reflected in the fourth part of the General Agreement on Tariffs and Trade. At present, the most urgent thing is to stabilize these preferential measures, and further clarify and concretize them and implement them.

The implementation of the universal preferential system, from superficial equality to substantive fairness, has played a certain role in the equal development of developing countries. However, as can be seen from the above, even the generalized system of preferences has some problems. Therefore, we should further strengthen the adherence to the principle of fairness and mutual benefit in international economic practice, so as to achieve fairness and mutual benefit at more levels.

(6), from the practice of China.

China is now in an important stage of reform and opening up, and international economic exchange is an important aspect of opening up. In China's international economic and legal documents, the principle of fairness and mutual benefit is basically the guiding ideology of legislation and judicature.

The "Five Principles of Peaceful Coexistence" mentioned in the preamble of the Constitution of China clearly stipulates the principle of equality and mutual benefit. Article 5 of the Foreign Trade Law, which was just revised in April 2004, stipulates: "People's Republic of China (PRC) promotes and develops trade relations with other countries and regions on the principle of equality and mutual benefit, and concludes or participates in regional economic and trade agreements such as customs union agreements and free trade zone agreements, and participates in regional economic organizations." ; 200 1 Article 1 of the Law on Chinese-foreign Joint Ventures stipulates: "In order to expand international economic cooperation and technical exchanges, People's Republic of China (PRC), with the approval of the China government, allows foreign companies, enterprises and other economic organizations or individuals (hereinafter referred to as Chinese-foreign joint ventures) to cooperate with companies, enterprises or other economic organizations in China on the basis of equality and mutual benefit. ..... The country regards the principle of fairness and mutual benefit as the basic principle of the law on foreign economic exchanges, so it can be seen that the guiding position of the principle of fairness and mutual benefit in domestic legislation is adhered to at this stage.

The state has established the principle of fairness and mutual benefit in legislation, and it is very necessary to adhere to the principle of fairness and mutual benefit in foreign economic relations.

refer to

1 edited by Xie Bangzong and Zhang. Principles of International Economic Law, World Book Publishing House, 1992.

2. Guo Linjia, On the Embodiment of the Basic Principles of International Economic Law in China Law, Journal of Guangxi Institute of Political Science and Law Management, August 2002.

3 Shen, Jurisprudence, Peking University Publishing House, 2000.