Understanding the division between public law and private law from the basic principles of civil law. Private law; Legal norm system [Abstract] For a long time, the legal circles in our country have not recognized the division between public law and private law in our legal norm system, overemphasized the national will of civil relations and neglected the respect for the will of citizens and legal persons. In recent years, with the continuous improvement of China's legal system, we have to revise our original views and recognize the division between public law and private law. This paper mainly discusses the division between public law and private law from the perspective of basic principles of civil law such as equality, voluntariness and fairness. In recent years, with the development of market economy, the pattern of high integration of politics and economy began to decompose, and civil and commercial legislation gradually increased. The denial of the division between public law and private law in China's legal theory can no longer meet the essence and requirements of the socialist market economy. Chinese jurists have to re-examine and revise their original views and accept the fact that public law and private law are relatively independent and the view that private law takes precedence. It is generally believed that public law mainly regulates the relationship between the state and citizens, and the rights thus formed are called public rights. Public law usually includes constitution, administrative law, procedural law, criminal law, tax law and military law. Private law mainly adjusts the relationship between individual citizens, and the rights arising from it are called private rights. Private law usually refers to civil law. No country's legislation clearly defines the concepts of "public law" or "private law". The division between public law and private law was first put forward by the ancient Roman jurist Malbian. He thinks that the law about Roman countries is public law; The law concerning the Romans is private law [1]. At first, the meaning of division was only to make it easy for law learners to know the law and understand the legal norm system. Later, jurists realized that it was more important to study the value orientation of law. As Roman law became the basis of the world's first commodity economy law, Napoleonic Code, many of its principles were generally imitated by many civil law countries in later generations. Why do jurists in almost all capitalist countries highly admire the division between public law and private law, starting from Roman jurists? The author believes that the fundamental reason lies in: on the one hand, it is to prevent the inherent nature or relative independence of various legal departments from being alienated; On the other hand, it is also to prevent the law that embodies the public right relationship between the state and citizens from intruding on the law that embodies the private right relationship between citizens, thus establishing a distinct departmental law system. Then, after the establishment of public ownership countries, why should we try our best to abandon the division between public law and private law? The reason, as Lenin said, is to expand the scope of state intervention in private rights relations, including the power of the state to abolish private contracts, thus forming the basis of public ownership on which Soviet countries depend. Objectively speaking, Lenin refused to recognize the division between public law and private law, which is consistent with the Bolshevik Party's program and practice of eliminating private ownership and gradually nationalizing enterprises such as land, banks, minerals and transportation. Because this is not the case, it is difficult to establish a socialist economic foundation in the open space where there is no ready-made socialist economic bud. However, China's legal theory has long denied the division between public law and private law, which is inseparable from two reasons: first, the classical theory of Marxism-Leninism is too restrictive to China; Secondly, Lenin's theory meets the legal requirement that China's long-term highly centralized planned economy system needs comprehensive intervention in social and economic life. In fact, Engels has long held the views of public law and private law. When discussing the emergence of law, he pointed out: "At the very early stage of social development, there was such a need: to summarize the repeated production, distribution and exchange of products with a * * * rule, and try to make individuals abide by the general conditions of production and exchange. This rule was first manifested as habit, and later became law. With the emergence of law, there will inevitably be an organ whose duty is to safeguard the law-public power, that is, the state. " [2] This exposition, which embodies the unity of history and logic, not only fully shows that private law precedes public law in the legal process, but also contains the profound view that public law and public power are for private law. However, in the past, we just ignored the significance of this argument to legal classification. In the modern legal system, the division between public law and private law is the basis of modern legal order and the premise of establishing a country ruled by law. In modern countries, all legal norms belong to one side of public law or private law, and have different effects because of their differences. There are three theories about how to establish the division standard between public law and private law. One is the interest theory, that is, public law stipulates the national interest and private law stipulates the private interest; Second, the doctrine of will, that is, the power obedience relationship between the state and citizens means public law, and the equal relationship between citizens means private law (this is also the legal relationship theory based on the content and nature of legal relationship); The third is the subject theory, that is, at least one of the subjects of public law is the state or the state grants public rights, and the legal status of the subjects of private law is equal. The third theory is generally recognized by jurists. In order to correctly understand the division between public law and private law, the author thinks it is necessary to conduct textual research from the relevant basic principles of civil law. First, the principle of equal status of civil subjects. Equality is a concept with many different meanings. What is discussed here is the equality of legal status involved in the subject of private law. Article 3 of the General Principles of Civil Law of People's Republic of China (PRC) stipulates: "The parties have equal status in civil activities." The principle of equality means that civil subjects enjoy independent legal personality and can express their will independently. As a civil subject, it is the owner of property in the static state and the exchanger in the dynamic state, not the superior and subordinate in the state administrative relationship. Even the state, as a civil subject, must be bound by civil norms and maintain an equal position with other civil subjects. When the civil rights enjoyed by civil subjects are infringed, their equal status is protected by law. Natural people are created equal; Legal persons are equal in personality regardless of industry, nature and property status (the equality of personality of legal persons is the basis of equal status of legal persons). From the principle of equality, it can be understood that the legal relationship of private law is the relationship between market subjects with equal legal status, which is completely different from the legal relationship of public law, that is, the relationship between the state and the market by virtue of public power. However, the equality of civil subjects in personality does not mean that all parties enjoy the same specific civil rights and obligations in the actual civil legal relationship. In a specific civil legal relationship, each party enjoys different rights and undertakes different obligations according to the law and its own will, especially for a legal person, whose rights and obligations are limited by its own nature, laws and administrative orders and the scope of its purpose. Second, the principle of voluntariness. Article 4 of the General Principles of Civil Law stipulates that civil activities should follow the principle of voluntariness, that is, civil subjects should fully express their true meaning and establish, change and terminate certain civil relations according to their own wishes. The establishment of this principle is to give civil subjects extensive freedom of action within the statutory scope, which is actually the full embodiment of the principle of autonomy of will pursued by private law. Through the study and understanding of traditional legal theory, we can summarize the connotation of autonomy of will at three levels: First, from the perspective of philosophy of law and sociology of law [3], autonomy of will is the direct product of individualism and liberalism philosophy, which can be roughly defined as that each member of the club manages his own affairs, makes his own choices and participates independently according to his own rational judgment. Hegel once pointed out in the Principles of Philosophy of Right that the state should give citizens the right to own private property and at the same time give individuals the right to freely conclude contracts [4]. Secondly, judging from the division of public law and private law, autonomy of will is autonomy of private law, which basically means that the subject of private law has the right to independently implement private law acts, and others may not interfere with it by law; The subject of private law is only responsible for the private law behavior based on the true meaning of free expression; Under the premise of not violating the mandatory law, the agreement voluntarily reached by private law subjects takes precedence over the application of private law, that is, the private law is amended in the private agreement. Autonomy of will is the direct product of the theory of division of public and private law in Roman law period. It is based on the theoretical premise of recognizing civil law as private law and becomes the essence of civil law. With the development of modern civil law, the autonomy of private law is divided into three basic principles of civil law: absolute ownership, freedom of contract and liability for negligence. Third, from the perspective of conflict of laws [5], autonomy of the will refers to the right of the parties to choose the applicable law to resolve disputes through consultation. The principle of autonomy of will is the inevitable reflection of the objective requirements of commodity economy in civil law when the society develops to a certain stage. Since the Napoleonic Code, it has been regarded as a sacred legal norm in modern civil law because it conforms to the ideas of individual standard and liberalism in the development of European capitalism. However, with the rise of modern state intervention, the decline of philosophical individualism and economic liberalism will inevitably lead to the weakening of the principle of party autonomy. Since the beginning of this century, the principle of freedom of contract in civil law has been impacted, and the freedom of transaction between civil subjects must not conflict with public interests, moral norms and dominant public policies. The laws of many countries severely punish the use of private property in a way that harms or disturbs other members of society, while commercial activities carried out in accordance with practices that are considered completely unfair by other businessmen or the whole society are restricted by law. In this way, the principle of autonomy of the will is changed by injecting new content. Third, the principle of fairness and equal pay. One idea of law is the pursuit of justice. The connotation of fairness, justice and equality contained in justice is the highest goal pursued by all value systems in political society. Private law naturally takes fairness and justice as its ultimate ideal. Article 4 of the General Principles of Civil Law also stipulates that civil activities should follow the principle of fairness, which is the legalization of moral norms. This principle requires that civil subjects should engage in civil activities with the concept of fairness, correctly exercise their rights and fulfill their obligations, and give consideration to the interests of others and the public in civil activities. At the same time, judicial organs should follow the principle of fairness when dealing with civil disputes, so that the handling of cases is both legal and fair. Fairness and justice is an extremely complicated issue, but as far as the subjects engaged in civil activities are concerned, the requirements of the concept of fairness and justice are as follows: first, the economic structure of a society must provide fair and equal opportunities for the free development of each of its members, provide means and procedural rules for the acquisition and rational distribution of interests of each of its members, and effectively correct and rescue them when the distribution of interests and fairness are unbalanced; Second, the trading activities of social relations subjects, that is, social members, should follow the recognized code of conduct, and the steps for the subjects to achieve economic goals should be fair and reasonable, and they must fully consider social interests and consciously accept the constraints of social obligations. According to Article 4 of the General Principles of Civil Law, civil activities should also follow the principle of equal compensation. This principle requires the civil subject to carry out equivalent exchange in civil activities such as transferring property from events. Either party shall not occupy or deprive the other party's property for free, infringe upon the other party's rights and interests and cause damage to the other party, and shall be liable for damages. In my opinion, this principle has involved some problems in the field of equal exchange and reciprocity. For example, in exchange transactions, people's sense of justice requires a certain degree of equality between promises and corresponding promises, as well as between performance and corresponding performance in some cases. Generally speaking, the parties to a contract determine the value of their performance by exercising their private autonomy, which is obviously different from that of public law by exercising state power. Although the division of public law and private law is based on their differences in nature and content, from the relevant principles of civil law discussed above, it is proved that there are indeed differences between public law and private law. The mandatory principle in the field of public law cannot be applied to the fields of equality, voluntariness and mutual benefit in private law. In other words, the improper extension and intervention of administrative power in private or civil fields should be reduced. Under China's market economy system, emphasizing the separation of public law and private law is conducive to clarifying the independent status of private individuals, the negotiation of private rights and obligations and the inviolability of civil rights, and respecting the wishes of citizens and legal persons in non-governmental exchanges; It is also conducive to establishing the concept that private law is the legal basis of public law and the whole rule of law. [References] [1] Pan Nianzhi. General Theory of Law-Translation of Foreign Legal Knowledge [M]. Beijing: Knowledge Publishing House, 1982. [2] Marx and Engels. Selected Works of Marx and Engels Volume 8 [C]. Pages 538-539. [3] Yao Hui 36. [4] Hegel. Philosophy of rights [M]. Beijing: Commercial Press, 1995. [5] Jiang Ping, Zhang Lihong. Market and autonomy of will [J]. Legal research, 1993, (6)