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The basic principles of economic law play an extremely important role in the theoretical perfection and practical exploration of economic law, and are also one of the basic theoretical problems in the study of economic law. Experts and scholars have conducted in-depth research on this issue for many years, but many viewpoints are still not unified, so it is necessary to discuss this issue again.
I. What are the principles of economic law
According to the definition of legal principles by some domestic scholars and experts, the principles referred to here are the most fundamental and basic principles of various laws and regulations, with stability and comprehensiveness. It can be seen that the rules guiding economic law, the principles and concepts applicable to the whole practice of economic law, are the so-called basic principles of economic law. The legitimacy, universality and characteristics of economic law constitute the basic principles and the essence of economic law. For these three elements, we have elaborated as follows:
(1) legality. Legal norms are the basic principles of economic law. The legal system can scientifically and reasonably realize its requirements and inherent characteristics of embodying the rights and obligations of economic law. When carrying out law enforcement and judicial work, the legal nature of the basic principles of economic law can be used as the operating basis. As far as the behavior of the subject of economic law is concerned, legitimacy is legally binding on it, and related illegal acts can be dealt with directly. Judging whether it can become the basic principle of economic law depends on whether it will lead to the above legal consequences.
(2) universality. In the whole implementation process of economic law, the basic principles of economic law will be applied and infiltrated, which will guide the legislative work, judicial work and law enforcement work in the economic field, and at the same time ensure and promote economic law-abiding. This is the universality of the basic laws of economic law.
(3) Characteristics of economic law. It can be said that the unique criterion of economic law is the basic principle of economic law. It is a must for the basic principles of economic law to make the characteristics of economic law appear obviously. It can be seen that some general legal principles cannot be the basic principles of economic law, such as the principle of a legally prescribed punishment for a specified crime and the principle of compulsion.
Understanding the definition of economic law is helpful to establish the basic principles of economic law. Basic principles refer to fundamental principles, which are different from specific principles. Generally speaking, rules and laws about the basic principles of economic law can always be found in the general principles of economic law in China. Its main legislative purpose, first of all, shows what the basic guiding ideology is; Secondly, it provides a clear program for every specific norm in economic law; Finally, it also points out the direction for the implementation of economic law. The basic principle of economic law can be said to be the synthesis of different kinds of economic laws and regulations used by the state to regulate and intervene the social economy, which has a great impetus to the adjustment of social and economic relations by economic law. The implementation of economic justice, economic legislation and economic law should be guided by the basic principles of economic law. The requirements of the people and the working class for the adjustment and transformation of social and economic life are reflected in the basic principles of economic law, and the basic theories of economic law include the basic principles of economic law.
The adjustment of economic law can be carried out according to its own characteristics, because it appeared late, and there are various views on the adjustment principle of economic law and its determination. People often refer to the laws and regulations of other departments, constitutional principles and the economic and political system of the country as the basic principles of economic law, which is not desirable. It can be seen that we have not really understood the characteristics of the basic principles of economics. The basic rules used by economic law to adjust social relations within a certain range are the basic principles of economic law. This principle is legal, that is to say, the norms of economic law need legal recognition, and its inherent characteristics are finiteness and stability. At the same time, it has a specific scope of application and cannot be changed. Different types of principles determine their different scope of application. [ 1]
Second, how to determine the standards of the basic principles of economic law.
In order to make the determination of the basic principles of economic law clear, normative and original, it is necessary to explore and refine them according to the established standards. In short, the basic principles of economic law should not only reflect the inherent attributes of economic law, but also conform to the normative rationality of law. There are several main criteria:
(1) Legal standardization. At present, in view of the phenomenon that the basic principles of economic law are equal to the basic principles and concepts of economics, the standard of legal standardization is put forward. The three elements of law are legal norms, which are essentially legal norms. The standardization of law is the basic principle of economic law, and its legislative characteristics in the economic field can be revealed later.
(2) A high degree of abstraction. In order to play a leading role in the economic law system, the basic principles of economic law must reach a certain height. The basic value, spirit and internal characteristics of a departmental law are always reflected through the basic principles of the law. First of all, it is abstract to a certain extent, which is very different from ordinary legal norms. Therefore, the basic principles of economic law need to be highly abstract.
(3) the standard of specificity. Explain that the inherent essence of economic law is the specificity of the basic principles of economic law. The laws and regulations used by the state to intervene in the economy are what we call economic laws, which are determined by the basic principles of economic laws and reflect the particularity of economic laws in theory. It can be seen that the laws of other departments cannot be regarded as economic laws, and only economic laws can contain the basic principles of economic laws.
(4) General standards. The adjustment object of economic law is closely related to the basic principles of economic law, which is the universality of the basic principles of economic law. It is this universality that makes the basic principles of economic law different from other laws and regulations of economic law. First of all, in the process of legislation, law enforcement, judicature and law-abiding, the basic principles of economic law should be implemented and implemented in every link. In addition, the basic principles of economic law can be used in the overall scope of economic law, including macro-control law, market regulation law and general theories of economic law.
(5) Orientation and value. Value orientation is the standard of the basic principles of economic law, which is also an important standard that the basic principles of economic law must follow. The basic value, significance and spirit of economic law are embodied through the basic principles of economic law. Therefore, the integration of economic law value and law is the basic principle of economic law, and the significance of economic law in the main body of economic law is also reflected. In addition, the highest provision in economic law is the basic principle of economic law, which can break through the limitations of economic law in written law to a certain extent and play a guiding role in a series of laws used by courts.
Third, the constitution principle of the basic principles of economic law.
1. The principle of cooperative performance of economic law
Different from the traditional concept of efficiency, the coordinated performance principle of economic law not only analyzes the input and output, but also evaluates the results of the use and allocation of social resources according to the established goals. It can be said that the social and economic interests formed by the development of individual economic interests are the most important point in the principle of coordinated implementation of economic law at present. The promotion of economic aggregate, the progress of science and technology, the optimization of economic structure and the improvement of overall social welfare are the pursuit goals of the principle of coordinated implementation of economic law, which need to be carried out simultaneously and are indispensable.
Undeniably, the market plays a fundamental role in the optimal allocation of resources. But for the market economy, as Adam Smith School said, "Everyone's natural efforts to improve their own situation are so powerful that they can make society rich and prosperous without any help." This means that the improvement of individual economic benefits will certainly promote the growth of overall social and economic benefits, but there are defects and limitations in both empirical and theoretical perspectives. Generally speaking, the economic benefits of society as a whole are similar to those of individuals. The accumulation of individual economic benefits can promote the development and progress of the overall economic benefits, but the improvement of social and economic benefits is not determined by the improvement of individual economic benefits. [2]
Within the scope of macroeconomic operation and development, the starting point of the principle of coordinated interests in economic law is the economic interests of the whole society. As a means to adjust the overall economic structure and social aggregate, the macro-control law makes resources scientifically adjusted and effectively optimized, and the harm brought by the free market economy to the national economy will be reduced accordingly, and the overall economic benefit will be improved.
2. The principle of coordination and fairness in economic law
From the microscopic point of view of economic development, if we do not consider the balanced development of the overall economic system, raw materials, capital, labor, science and technology will all develop from low profit to high profit for the purpose of interests, and those public industries that aim at protecting citizens' fundamental interests will just become low-profit industries, so the social security and fair system will be damaged.
The survival of the fittest will surely become the final result of free market competition, and a few powerful competitors will gain more and more wealth and assets. In order to maintain the long-term existence of huge profits, they will bring many adverse effects to fair competition in the market, and at the same time, they will also damage the fair rights and legitimate social welfare of other competitors. In this way, the main interests of the market economy will be extremely unbalanced and social contradictions will intensify. In the civil and commercial law that can guarantee fair competition, the harm of free competition still exists, because the capital strength, technical equipment, cultural accomplishment, information content and market position of market participants are ignored in the traditional and backward civil and commercial law. Traditional civil and commercial law regards different market participants as the same line and gives the same restrictions and protection, which also brings unfair competition. The stronger the strong, the weaker the weak. In this case, the defects of private law have not been adjusted, and unfair competition will intensify under the cover of superficial equality of opportunity. Therefore, from the social point of view, the core value of the emergence and perfection of economic law is fairness in the true sense. [3]
Economic law attaches great importance to formal fairness, and all subjects in the market will treat it fairly under the same conditions, but the higher level goal pursued by economic law is real fairness. Economic law attaches importance to individual differences, divides market subjects according to specific standards, and pursues a higher sense of fairness on the basis of clearly analyzing individual differences, the financial situation of economic subjects and the amount of technology involved.
(1) It is the requirement of the fair coordination criterion of economic law to do more legal obligations to market participants with unique skills, advantages, market position and conditions.
(2) Some subjects with weak ability will be harmed by economic privileges, and fair and coordinated economic law norms need to give them more rights and protection. For example, in the Consumer Protection Law, consumers and operators are equal subjects, but consumers are given too many rights and obligations, and the right of equal subjects to equal protection in civil and commercial law is broken, thus realizing real equality. If consumers are deceived by sellers, they can claim compensation, which reflects the protection of consumers by economic law. The principle of equality is the core of economic law. Although sellers, consumers and producers enjoy unequal rights in form, it properly shows that economic law corrects and perfects the mistakes of traditional civil and commercial law and promotes its own development. [4]
Fourth, summary.
Generally speaking, the two principles of economic law are the principle of fair competition and the principle of appropriate intervention. On the one hand, the inherent requirement of state intervention in the economy has been reflected, and the characteristics of the object of economic law adjustment have also been reflected; On the other hand, the basic spirit, value and internal meaning of the principles of economic law have been integrated. The unity of private rights and public rights in these two principles also shows the inherent characteristics of the basic principles of economic law.
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