(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 various 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 it must 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.
The difference between private law and public law, private law and private international law. The difference between public international law and private international law mainly lies in the different objects of adjustment: private international law is to adjust the civil relations between natural persons and legal persons that span the geographical scope of a country, while public international law is to adjust the diplomatic, political and military relations between countries.
Private international law and private international law are two concepts that are both related and different.
The connection between private international law and private international law lies in that they both belong to the superstructure, are based on the economic basis of international economic exchanges, and are based on the existence and development of foreign-related civil relations. With the international economic exchanges and personnel exchanges becoming a social phenomenon, the emergence and development of private international law provides research objects and development space for the emergence and development of private international law. Private international law is based on the existence of private international law, and its research results not only promote the legislative development of private international law, but also guide its practice. /kloc-the theory of "legal differences" in the 0/3rd century laid the foundation of private international law; /kloc-the theory of "location of legal relationship" in the 0/9th century played an important role in establishing the conflict rule of the principle of closest connection.
The difference between private international law and private international law is that private international law is an independent legal department, which takes foreign-related civil relations as the adjustment object. It consists of the norms of foreigners' civil legal status, conflict norms, unified entity norms, international civil litigation and international commercial arbitration procedures. These legal norms have legal effect and are the code of conduct for people engaged in foreign-related economic and civil activities. Private international law is a legal discipline that takes private international law as the research object and studies the law of its emergence and development. Private international law consists of works, doctrines, theories and opinions, most of which are not legally binding and only play a corresponding auxiliary role in the formulation and application of private international law norms.