First of all, the mission of economic law is to adjust national economic relations.
The essence of economic law.
The basic function of law is to adjust social relations in order to form a social order beneficial to the ruling class. Among them, the economic law adjusts the economic relations influenced by national factors, that is, the national economic relations.
The "state" mentioned here includes the organs of state power and their executive organs-administrative organs. According to the Constitution, the National People's Congress formulates and amends basic economic laws, examines and approves national economic and social development plans and reports on their implementation, and examines and approves national budgets and reports on their implementation. The National People's Congress Standing Committee (NPCSC) formulates and amends general laws on the economy, and has the right to partially amend and supplement the laws enacted by the National People's Congress when the National People's Congress is not in session, and has the right to examine and approve some adjustment plans of the national plan and budget. The State Council formulates economic and administrative regulations, formulates and implements national economic and social development plans and national budgets, and leads and manages economic work and urban and rural construction. According to the basic principles of the constitution, the economic law stipulates the functions and powers of state organs at all levels, mainly the government, to lead, organize and manage the national economy and the procedures for exercising their functions and powers, so as to facilitate implementation. This is the "national factor".
The scope of national factors includes both macro and micro aspects. Macroscopically, it refers to the overall situation of national economic development, with emphasis on planning, budget, taxation, finance, prices, wages, industrial policies, foreign trade and economic cooperation, etc. Microscopically, it refers to the necessary management of enterprises by relevant government departments and the specific matters of the market.
Ways of national factors, including intervention and participation. Intervention refers to indirect regulation and direct management. Macro-control mainly adopts economic means, acts in accordance with economic laws, especially the law of value, and is brought into legal procedures as much as possible. From the form of expression, direct management mainly adopts administrative means, but it should also be administration according to law. Intervention can be divided into positive intervention and negative intervention. The former refers to protection and encouragement, while the latter refers to restriction and prohibition. After years of reform practice, we have formed such a guiding principle: "The government uses economic means, legal means and necessary administrative means to manage the national economy and does not directly interfere with the production and business activities of enterprises." [1] This clarifies what "moderate state intervention" means. Participation refers to state investment and the establishment of enterprises and undertakings. In China, public ownership is the main body, and state ownership is the main body. The state has the right to possess, use, benefit and dispose of state-owned assets, but state ownership does not mean state ownership, and ownership and management rights can be separated. Strictly speaking, intervention is "management", participation is "management", and management and management should be separated. The former belongs to the function of the government as a social and economic manager, while the latter belongs to the function of the government as a representative of the owner of state-owned assets. Economic law focuses on adjusting the activities of the state to manage the national economy and maintain the order of the market economy.
From this, we can get an understanding that economic law is the general name of legal norms for the state to manage and coordinate national economic relations. It has three basic components: first, the state exercises macro-control and necessary administrative management over the whole national economy; The second is to maintain the order of market competition; The third is to establish a modern enterprise system. The state regulates the market, the market guides enterprises, and enterprises operate independently, which constitutes the keynote of economic law.
According to this understanding, economic law and civil law are basically divided. Civil law regulates the economic relations among citizens, legal persons and other organizations as equal subjects, while economic law regulates the economic relations affected by national factors. Of course, in some cases, there will be some cross links. In the process of adjusting the relationship of socialist market economy, civil law and economic law have both a relative division of labor and a common role.
2. The position of economic law in the whole legal system of the country.
The legal system of a country refers to the unity composed of laws of various departments with internal relations. Chinese and foreign legal circles have always had many views on the division of legal departments and the framework of legal system. We believe that the design of a country's legal system, on the one hand, should be suitable for its own national conditions, on the other hand, it should be considered to be in line with international standards. The author once pointed out: "From the reality of socialism in China, under the fundamental law of the Constitution, there are mainly six categories of laws: administrative law, criminal law, civil law, economic law, social law and litigation and arbitration law." [2] At the beginning of last year, Wang Jiafu and other six researchers wrote that China's socialist legal system should be mainly composed of the following nine types of laws: Constitution, Administrative Law, Economic Law, Administrative Procedure Law, Civil and Commercial Law, Civil Procedure Law, Criminal Law, Criminal Procedure Law and Social Law. Among them, the third place is "the economic law that the state intervenes in economic life, maintains economic order and macro-controls the market from the overall interests." [3] So far, there are not many works that highlight the status of economic law.
The position of economic law in China's socialist legal system is first manifested in its formation as an independent legal department. The adjustment object of economic law is objective and realistic economic relations, which has its particularity and certain scope. The adjustment method of economic law is direct and comprehensive. If we say that economic law was still in theoretical form at the beginning of reform and opening up, today, we can say that a series of legal norms that adjust the influence of state factors on economic relations have been combined into an economic law department in the overall sense.
As a new legal form, the status of economic law in the whole legal system of the country is not only whether it is a legal department, but more importantly, whether it is a basic legal department. The establishment of a market economy model combining market mechanism with macro-control and the overall coordination of the relationship between the state, the market and enterprises mainly depend on civil law and economic law, among which macro-control is the unique function of economic law. The social contradictions solved by economic law belong to basic economic relations, and its role is irreplaceable by other legal departments, so it is indispensable. In view of this, isn't it logical to call it the basic legal department?
Two, the biggest workload of administrative organs is to manage the national economy according to law.
1. Functions of modern administration
In the feudal society of China for thousands of years, the administration and the judiciary were often mixed together, and a lot of affairs of county magistrate and magistrate were trying cases. One of the symbols of modern social civilization is the separation of legislation, administration and justice. Although China has not copied the "separation of powers" system of some western countries, it also divides state organs into three categories: power organs, administrative organs, judicial organs and procuratorial organs, which have both division of labor and coordination. We must take this as a starting point to examine the functions of modern administration. This is just general.
The particularity lies in embodying the characteristics of the times. After comparing the positive and negative experiences, under the leadership of the Communist Party of China (CPC), represented by Comrade Deng Xiaoping, the people of China finally found a road of socialist construction with its own characteristics, which was enshrined in party constitution and the Constitution. This is: centering on economic construction, adhering to the four cardinal principles and persisting in reform and opening up. Since the fundamental task of the country is to concentrate on socialist modernization, as the executive organ of the state power, the biggest workload must be to manage the national economy. At the same time, we should also manage various administrative affairs, cultural undertakings and other social affairs.
2. The combination of economic law and administrative management
The mission of economic law and the function of modern country are analyzed. On this basis, we will further explore the relationship between economic law and administrative management. Economic law reflects how national factors affect the order of market economy from a legal perspective, and administrative management adjusts how administrative organs lead and manage national economic construction from an administrative perspective. These are two sides of the same question. In this regard, managers and jurists have reached a consensus. You may wish to quote the following two pieces of information:
(1) Professor Xia's Administrative Management defines the concept of contemporary administration as follows: "Administration is the activity of the executive organs of state power organs to manage state affairs, social affairs and internal affairs according to law." 〔4〕
(2) The Administrative Law Course written by Professor Zhu ó @ ① puts forward the following views: "In China, the legal system construction of government work is closely related to the two major legal departments in China's socialist legal system, namely economic law and administrative law. Of course, apart from its big branch, economic administrative law, which is closely related to government work, there are other contents. Administrative law, including the economic administrative law, which is a big department intersecting with economic law, is closely related to government work. In short, strengthening the legal construction of government work, in China, is mainly to vigorously develop economic law and administrative law. " 〔5〕
There is no doubt that governing the country according to law includes managing the national economy according to law, especially applying economic law and administrative law to administrative management.
Economic administrative law is the general name of all kinds of legal norms to adjust the national economic management relations, such as budget law, tax collection management law, China People's Bank law, audit law, land management law, urban real estate management law, state-owned enterprise property supervision and management regulations, foreign exchange management regulations, company registration management regulations, etc. Some scholars call it economic administrative law, and some scholars think it should be called administrative economic law, because it appears in the form of the intersection of economic law and administrative law, and has both the attributes of economic law and administrative law. Because it emphasizes the role of national factors and administrative management serves economic construction, it is also a national economic management law.
According to statistics, in China's legal system, about 80% of laws and administrative regulations are implemented by administrative organs, and the largest number of administrative law enforcement activities are implemented by economic administrative organs, such as planning, finance, taxation, central bank, auditing, statistics, prices, industrial and commercial administration, technical supervision, planning, land, urban construction, labor, customs, natural resources management, environmental protection, etc.
Based on the whole country, economic law shows the fundamental characteristics of social publicity; Modern administration is also called public administration, that is, the government plays a role in social and economic development. The conclusion comes naturally: economic law and modern administration have an indissoluble bond; Modern administration must use economic law.
Third, the specific application of economic law in modern administration
1. target
What is the expected goal of applying economic law in modern administration? As we all know, all economic work must be centered on improving economic efficiency. We are carrying out two fundamental changes with comprehensive significance. First, the economic system has changed from the traditional planned economy system to the socialist market economy system, and second, the mode of economic growth has changed from extensive to intensive. The former requires initial realization in this century; The latter change takes longer. At present, state-owned enterprises, including state-owned foreign trade enterprises, are facing many difficulties, and some enterprises have unsatisfactory benefits. Therefore, we should give priority to efficiency while giving consideration to fairness.
Economic law has an impact on the national economy, generally through the economic base as an intermediary, or to transform the old relations of production, or to establish new relations of production, in order to liberate and develop productive forces. There are also some economic laws related to the relationship between man and nature, which can directly protect and promote productive forces. State economic management organs and their staff should master the legal knowledge necessary to perform administrative functions, especially improve their awareness and ability to manage the national economy by using economic law, and strive to achieve the goal of "the rule of law in economic management reaches a higher level" put forward by the state. 6. To formulate socialist laws, we must follow objective economic laws and natural laws, and act in accordance with the law should be as consistent as possible. To realize the legalization of economic management is to realize the scientific management. Scientific management is the way to govern the country.
2. Principles
What principles must be adhered to in applying economic law in modern administration? Generally speaking, it is administration according to law. The reason is that the socialist market economy should be a legal economy.
The basic link of governing the country according to law is the legalization of administrative management. Administrative organs exercise administrative power and manage state affairs according to law, which embodies the progress of human society, that is, from rule of man to rule of law. Modern governments generally follow this principle, which was also established in China after the reform and opening up. Managing the national economy according to law is an important aspect of administration according to law.
Socialist countries implement administration according to law, and correctly handle the relationship between the people's government and the masses with a standardized system, which is conducive to ensuring the implementation of the purpose of serving the people, the standardization and scientificity of administrative management, and the social supervision of administrative work.
In the past two decades, China's socialist legal system construction has made great achievements, but there are still many problems. For example, in the economic field, people hate these social hazards, such as seizing and destroying state and collective property, manufacturing and selling fake and shoddy products, engaging in unfair competition, disrupting the order of the market economy, charging arbitrary fees, imposing fines and apportioning fees, government agencies abusing their powers, setting up their own companies, making excuses and competing for profits with the people. 1in March, 1996, in the government work report made at the Fourth Session of the Eighth National People's Congress, it was emphasized that "governments at all levels and state civil servants should manage economic and social affairs according to law and resolutely safeguard the unity and seriousness of national laws, regulations and policies."
3. Basic content
What basic contents should be mastered in applying economic law in modern administration? It can be divided into macro-control and specific administrative management.
The functions of the state in managing the economy are mainly macro-control, including planning the overall development, formulating principles and policies, coordinating the operation of the market, organizing social security, establishing a mechanism of coordination and mutual restraint between planning, finance and finance through legislation, and formulating a comprehensive reform plan for prices and wages. Therefore, planning law, fiscal law, tax law, banking law, price law and wage law occupy an important position in the economic law system. Modern economic law, as a national macro-control law, shows that under the condition of market economy, the role of the state is active, not passive, and it is strategic management, not filling the gap.
Here is a successful example. 1in March 1993, China revised its constitution and added an important clause: "The state strengthens economic legislation and improves macro-control." On June 24th of the same year, the Central Committee of the Communist Party of China and the State Council issued Opinions on the Current Economic Situation and Strengthening Macro-control, and put forward 16 measures. Central leading comrades said that 16 included 13 as an economic means. 1993 since the second half of the year, China has implemented macro-control with controlling inflation as its primary task. After more than three years of hard work, by the end of 1996, the national economy had successfully achieved a "soft landing". During this period, a series of legislative measures were taken, including: (1) 65438+1The Company Law promulgated in February, 1993, which determined that "under the macro-control of the state, the company shall organize its production and operation independently according to market demand, with the aim of improving economic benefits, labor productivity and maintaining and increasing assets." (2)1March, 1994, the Budget Law begins with a clear meaning: "In order to strengthen the budget allocation and supervision functions, improve the national budget management, strengthen the national macro-control, and ensure the healthy development of the economy and society, this Law is formulated in accordance with the Constitution." (3)1Article 1 of the Law on the People's Bank of China in March, 995 stipulates: "This Law is formulated in order to establish the position and responsibilities of the People's Bank of China, ensure the correct formulation and implementation of the national monetary policy, establish and improve the macro-control system of the central bank, and strengthen the management of the financial industry." Article 3 stipulates: "The goal of monetary policy is to maintain the stability of the currency and promote economic growth." The above-mentioned economic laws all emphasize the most important management means of "perfecting macro-control".
Another link is the specific administrative management of national economic activities. For example, company registration, issuing various permits and licenses, taxation, price inspection, commodity market management, product quality supervision and management, and so on. In administrative law, it is called specific administrative act.
As for abstract administrative acts, it means that the State Council formulates administrative regulations, relevant ministries and local governments in the State Council formulate regulations, and administrative organs at all levels formulate and issue universally binding decisions and orders. Some of these administrative regulations, rules, decisions and orders involve macro and some involve micro. Macro-control and micro-invigorating do not mean macro-control and micro-self-flow. The abstract administrative behavior and concrete administrative behavior of the government will have one kind or another influence on macro-economy and micro-economy.
4. operability
What operational problems should be paid attention to when applying economic law in modern administration? According to the practice in China, we should mainly handle the following relations.
First, the hierarchy of national economic legal management-basic level and auxiliary level. Administrative organs are social and economic managers and administrative law enforcers. The first or basic level of administration according to law is that administrative organs exercise administrative power according to law, including administrative punishment power. Under the condition of socialist market economy, administrative organs are faced with a large number of social and economic problems and need to make many specific administrative actions. When citizens, legal persons or other organizations violate the administrative order, the administrative organ will make a decision on administrative punishment according to law. The second or supplementary level of administration according to law means that citizens, legal persons or other organizations have the right to apply for administrative reconsideration, file an administrative lawsuit and request state compensation in accordance with the law if they refuse to accept administrative treatment or administrative punishment. The results of these three interrelated legal relief systems may be the recognition and maintenance of administrative treatment and punishment, or the denial and restriction of administrative treatment and punishment. The administrative organs enjoy the power of administrative management, and citizens, legal persons or other organizations enjoy the right of legal relief, which can also reflect the fairness of the socialist legal system.
Second, the scope of administrative functions and powers-statutory functions and powers and discretion. The administrative organ shall exercise its power in accordance with the statutory principle, that is, it can only exercise the administrative power prescribed by law, and shall not exercise it without the explicit authorization of the law. Violation of this principle constitutes ultra vires. In view of the current ineffective crackdown on some illegal acts, people demand to strengthen law enforcement, which is also correct in general, but the comprehensive understanding should be that administrative law enforcement and administrative punishment should be both powerful and limited. This "degree" is determined by legal authority. Due to the complexity and diversity of social and economic life, it is not appropriate to adopt a "one size fits all" approach. The law often lists a range within the statutory scope of authority, and the administrative organ can enjoy discretion within the statutory scope, but it cannot be unfair. For example, the general fine for violating the administrative order of public security management is 1 yuan but not more than 200 yuan; False advertisements may be fined between RMB 6,543,800 and RMB 200,000 according to the circumstances. Administrative organs shall not exercise their functions and powers beyond the scope prescribed by laws, regulations and rules. Therefore, prudence does not mean doing everything. The exercise of statutory authority and discretion belongs to administration according to law.
Third, the content of administrative authority-power and obligation. Executive power is granted by legislation in a country that represents the will of the ruling class (in a socialist country, it represents the will of the people). It means not only power, but also obligation, so it is also called duty. Now that you have undertaken the obligation, you should take action, not inaction. Chaos is ultra vires, inaction is dereliction of duty. Power or obligation, in the final analysis, is to practice the purpose of the people's government to serve the people. Some people become officials (civil servants, to be exact), only thinking about managing the people and not doing practical things for them. People lament that some localities and departments are difficult to handle affairs, and its source covers this. Therefore, national staff need to establish a unified view of rights and obligations. The correct relationship between government and enterprises should be: there is service in management, management in service, and management is also service.
Fourth, the process of exercising administrative authority-substantive authority and procedural requirements. Substantive law stipulates the actual rights and obligations, and procedural law stipulates the ways and steps of behavior. The actions and omissions mentioned above also apply to whether the law is enforced according to legal procedures. No matter administrative treatment, administrative punishment, administrative reconsideration, administrative litigation or state compensation, it cannot violate the statutory procedural requirements. For example, the Administrative Punishment Law stipulates: "If there is no legal basis or legal procedures are not followed, the administrative punishment is invalid." Therefore, administrative management should pay attention to both authority and procedure. However, it should be noted that the procedures should not be too complicated, but should be conducive to improving administrative efficiency and facilitating the masses.
Fourth, the close relationship between economic law and administrative management
Now the whole world is paying attention to an important topic in the field of development-public administration. 1In April 1996, the United Nations held its first discussion on this issue. The International Society of Administrative Sciences is the largest, highest-level and most important academic organization in the field of administrative science in the world. 1June, 1996, the third international conference on administration was held in Beijing. China government has been committed to the reform and development of administrative management system, absorbing foreign advanced experience and exploring an administrative management model suitable for its own national conditions. We should be fully aware of the importance of administration.
Administration is also called administration, or public administration, or public management. The aforementioned book "Administrative Management" pointed out: "Administrative management is a science that studies the objective laws of the executive organs of state power organs in managing state affairs, social affairs and internal affairs of organs according to law." 〔7〕
As a comprehensive discipline, administration is closely related to many other disciplines. Such as economic law. Economic law is a branch of the whole law, which studies the regularity of its emergence, development and function. Its subject and object include the legal status of the government and the standardization of economic management behavior. As a state organ embodying public power, as the owner of state-owned assets, and as an organ legal person in civil relations, the triple legal status of the government must be strictly distinguished and correctly applied, otherwise it will lead to chaotic management order due to vague legal status. China's administrative system reform needs to be continued, and at the same time, we should pay attention to and do some comparative studies on foreign government-led market economy models, especially those represented by Japanese, French and Korean. It is not only an inevitable requirement of modernization, but also a scientific means of modernization for the government to manage the national economy according to law and coordinate the operation of the market economy. From the it point of view, economic law has become an important part of modern administration, which is the proper meaning in the title.
It is true that economic law and administrative management have their own specific contents and systems, but they have overlapping relations on the theme of how to establish an effective administrative system and manage the national economy according to law. We can unify or combine them with the theory and method of system engineering. Japanese jurists once said that most of the norms in economic law are to be implemented by various state administrative organs [8]. So is China. Economic law includes administrative management, and administrative management includes economic law. Interdisciplinary is one of the trends of modern science development.
[1] See the Decision of the Central Committee of the Communist Party of China on Several Issues Concerning the Establishment of a Socialist Market Economic System (1993 1 1.04).
[2] My Humble Book: A New Theory of Economic Law, Sun Yat-sen University Press, June 1993, p. 4.
[3] Wang Jiafu et al.: "On the Rule of Law", "Legal Studies" No.2, 1996.
[4] [7] Xia Editor-in-Chief: Administrative Management, Sun Yat-sen University Press, June 199 1, p. 2, p. 6.
[5] Zhang Shang Zhuó @ ①: Administrative Law Course, China Central Radio and TV University Press, 1988, p. 28-29.
[6] See the Ninth Five-Year Plan for National Economic and Social Development of People's Republic of China (PRC) and the Outline of 20 10 Vision (1996,0317).
[8] Ri Kanazawa Xiong Liang: Introduction to Economic Law. See Gansu People's Publishing House, first edition, May 1985, page 1 18 for the Chinese version; Rijiangshang @ ②: Introduction to Economic Law and Monopoly Law. For the Chinese version, please refer to Foreign Legal Knowledge Translation Series: Economic Law, Knowledge Publishing House, version 1, March 1982, page 8.