Chapter 44 Instructions for formulating "economic law" - "law" is "law"

A French scholar said that in a market economy society, there are almost no jurists who do not understand economics, because the norms of the market economic order must be constrained by the legal system, and it is unthinkable for jurists who do not understand economics to understand politics. After tracking Jiang Ping's research results, the central government officials found that Jiang Ping's understanding of the market economy is quite professional.Therefore, when the central government studies and discusses the normative issues of the economy, Jiang Ping is also one of the spokespersons.

In fact, as early as 1980, Jiang Ping and his colleagues published a paper "The relationship between the state and state-owned enterprises should be the relationship between the owner and the occupier" in "Legal Studies", proposing that "the state-owned economy is a kind of owner-owned enterprise". "Two-story economy with top and producers below", pointing out that "it is this separation of owners and producers that requires the separation of corresponding property rights, that is, the need for both the state and enterprises to have property rights."Jiang Ping was keenly aware that individual dignity and autonomy were the core of civil law life.However, under the historical conditions at that time, it was politically impossible to extricate individuals from state-owned enterprises, but it was possible to extricate state-owned enterprises from state administration, and by doing so, individuals would go to The first step to economic freedom.This theory was very bold at the time.History coincides with Jiang Ping's thinking.

In 1987, Professor Jiang Ping edited the book "Company Law Tutorial", which played an important role in disseminating the concept of companies and the institutional experience of Western countries; in 1994, he edited "Theory of Legal Person System", which is considered to be a part of the construction of scientific legal person theory. masterpiece. In 1993, he published "Thoughts on Improving the Legal System of Market Economy" in "China Law" and "On Equity" published in "China Law" with his doctoral students in 1994. These are masterpieces with important ideological and theoretical value .

On September 15, 2003, the School of Civil and Commercial Economics of China University of Political Science and Law and the Shanghai Institute of Law and Economics jointly held a special dialogue on the rule of law economy, and invited Professor Jiang Ping, economist Wu Jinglian, and miscellaneous Liang Zhiping to speak on the same stage China's economy and the construction of the rule of law.The highest-level dialogue between law and economics since 1986 aroused the interest of senior leaders. Chinese society is in a period of transformation, which has prompted comprehensive and rapid changes in society.In the process of change, law and economy are two very important factors and methods.The development of the economy is the development of a "market economy", and the development of the law is the development of the so-called "rule of law".There have been many theories about the relationship between the two in the past, but the problem has not been resolved.For example, the visions of jurists and economists are sometimes different. Jurists often think that it is correct to have more laws, which can improve the socialist legal system.Economists just feel that too many laws may lead to too much intervention in the economy, but it will appear abnormal.How economists and jurists look at the relationship between the market economy and the rule of law, and how they look at the function and role of law in the development of China's market economy, are issues of concern to the society and are also the main purpose of this dialogue.

Speaking of it, the relationship between the market economy and the rule of law is very complicated, and economists and jurists have different understandings of this issue due to professional reasons.Jiang Ping first came into contact with the market economy in the late 1970s and early 1980s. At that time, economists proposed that "ownership" and "ownership" should be legal concepts or economic concepts?Someone asked Jiang Ping to find out where the concepts of "ownership", "ownership relationship" and "ownership" first appeared in legal science.Jiang Ping read some Roman law and other related materials to understand the precise meaning of "ownership".It was a shock to him.Because at that time, the focus of the discussion on how to establish a market economy was the issue of ownership relations. If the ownership relations were not broken, it would be difficult to establish a real market economy.

Later, Jiang Ping went to Belgium to give lectures. When talking about inheritance law, a Belgian jurist asked him whether there was an inheritance tax in China.Jiang Ping said that there is no inheritance tax in China.The colleague was surprised and said: China is so good!There is no inheritance tax!It was at that time that Jiang Ping learned about the inheritance tax in the West.In the West, the rich have to pay a very high inheritance tax, which is almost 50% of the inheritance value, while the poor do not have this burden.This surprised him very much. At that time, he joked with his Belgian counterparts: "Why do you wait for people to die and let your children inherit? Isn't it over if you donate during your lifetime?" They said: "You don't know, gift tax rate and inheritance tax rate It’s the same high!” Jiang Ping asked incomprehensibly: “Why is the inheritance tax rate so high?” Jiang Ping was shocked by their answer, and they said: “Gifts and inheritances are earned for nothing! You don’t get property by your own labor, so in the In this sense, you need to tax more, which is absolutely different from the tax rate on your own labor income." Jiang Ping asked again: "What is the money used for?" They said: "Use it to help the poor. Under the market economy, there may be Some people lose their labor force and competition. However, although the opportunities are equal, the results are still unequal, so we have to help them."

Jiang Ping thought, under the market economy, probably capitalism and socialism are converging!Because Western countries also talk about helping the poor, they also need to pay more taxes for getting something for nothing, and they also need to consider the unequal results of equal opportunities.This is his second big shock. When Jiang Ping went to study in the Soviet Union in 1951, he learned that "law" and "law" in Russian are the same word; while the English rule also refers to a certain economic law or a legal rule.Later, when China implemented a market economy, he began to think about a question: What is the relationship between the rules of law and the rules of a market economy?How to correctly solve the problems existing between the two?In his view, it is wrong to exaggerate the role of law, and it is also wrong to narrow the difference between law and economic laws.

Many people believe that as long as there are legal provisions for all social relations and all social behaviors, then it is the rule of law.Wu Jinglian believes that this is actually a misunderstanding.In his view, it is important not only to figure out the constitutional basis of the laws we have enacted, but also to reflect its fairness in terms of procedures.As Jiang Ping said, "Having laws does not mean having the rule of law, and having a constitution does not mean having constitutional government." Both Jiang Ping and Wu Jinglian believe that although there are more and more laws in the market economy, there are many "good laws" and "bad laws" among them.In Jiang Ping's view, evil is not bad, but hinders the development of the current economy or other undertakings.He suggested to reflect on whether there are bad laws in our country at present, and whether there are laws that are outdated but have not been changed in time.He thinks that if we don't recognize this, but only think that the law is always a driving force and cannot play a retrogressive or hindering role, then we are not a real realist or a materialist.

Jiang Ping used a vivid metaphor to describe the current views of economists and jurists on the relationship between the market economy and the rule of law.He said: "Economists think about how to make the cake bigger, while jurists think about how to divide the cake well." That is, economists make the cake bigger, and jurists divide the cake fairly.But he found that there is a problem with this concept, which is the contradiction between "fairness" and "efficiency".Generally speaking, economists pay more attention to efficiency, but the central goal of jurists is fairness. How to place "fairness" and "efficiency"?Which is more important?Jiang Ping believes that law, as a concept of fairness and justice, should be the fundamental spirit of the rule of law and should not be used as a tool.The law cannot be separated from its function as a tool, but if the law is only used as a tool without its concept, then this tool is doomed to be powerless.

Wu Jinglian compared the rule of law and legal system to "rule of water" and "rule of knife".He believes that "sword governance" is necessary, but it must obey the concept of "water governance".Jiang Ping understood this sentence to mean that if the law lacks ideas, it is nothing more than a "skill". Jiang Ping very much agrees with the "moderate law".He sees that people are disgusted with administrative intervention, but they still have insufficient understanding of legal intervention, including civil and commercial law scholars and economic law scholars in the legal field, who have different understandings of the extent to which law interferes with life in the economic field.Civil and Commercial Law emphasizes autonomy of will, while Economic Law emphasizes state intervention.

However, it should be noted that commercial laws should implement autonomy of will, but this does not mean that state interference is absolutely excluded.As Liang Zhiping said, private law cannot be regarded as an arbitrary law. The key issue is how to keep the state's intervention within a certain range, and not let this interference erode the autonomy of private law that individuals and economic subjects should enjoy. . Jiang Ping believes that a spontaneous market economy may cause the rich to become richer and the poor to become poorer.If it is so spontaneous that there is no restraint, then at this time, I am afraid that some kind of intervention and balance will depend on the power of the state.But even so, Jiang Ping still feels that China's current state power is too concentrated.If this premise is accepted, then we have to put forward such a slogan, that is, "return power to the people", return power to citizens and legal persons, and even return power to society. Jiang Ping quite agrees with the idea of ​​"the third power" proposed recently by someone in the legal circle.The so-called "third power" is not only state power and civil subject rights, but also social power (rights).He remembered that once Yan Shiduo of the Football Association went to the University of Political Science and Law to have a dialogue. At that time, he was arguing about a question-how much power does the Football Association have?Which rights and obligations can be controlled by the internal regulations of the Football Association?As for the punishment of players, if the suspension is stipulated, the suspension will be suspended, and the court will not accept it. In what cases can the court accept it?Players are not allowed to transfer, their reputation is violated, and their rights are deprived. Can they sue?At that time, Jiang Ping said that "regulations cannot be higher than national laws", but where is the boundary between industrial regulations and national laws?That is, how should social power (rights) and state power be divided? Jiang Ping believes that the market economy itself contains democratic politics, or itself promotes democratic politics.Because the market economy talks about the equality of subjects, there is an element of equality; when talking about autonomy of will, there is a requirement for freedom of contract, and there is freedom; the market economy talks about rights and people, and that is the issue of human rights.So the market is equal and has elements of equality.A market economy cannot do without these three elements: equality, freedom, and human rights, and these are precisely the requirements of democratic politics!Therefore, when the market economy develops to a certain extent, we should not worry that there will be some emerging wealthy people in the market economy to occupy the political stage or seize power.First of all, what they want to pursue is equality, freedom, and human rights, and the issue of democracy will obviously be appealed to. He feels that the issue of political democracy or the issue of political civilization raised by the 16th National Congress of the Communist Party of China is very timely.He personally thinks a very important spirit of democracy, one is that the minority obeys the majority, and the other is that the majority respects the minority!Democratic politics itself also requires tolerance of different opinions, and respect means respecting human rights.If a country's democratic system establishes an environment of tolerance and respect, it may be what we call political civilization, an enlightened politics.The political civilization proposed by the 16th National Congress of our party can also be understood as an enlightened politics. Enlightenedness is the opposite of autocracy, and that is an environment that should exist in public opinion, publishing, and other aspects. This is a manifestation of it. Our practical steps towards political democracy. Jiang Ping is highly respected in the Chinese jurisprudence circle and is known as the "spiritual guide of Chinese jurisprudence".This unique and loyal legal leader has always been relied on by the central government.A scholar in Hong Kong who pays close attention to Chinese politics calls it the "Jiangping Phenomenon" that the central government continues to use the older generation of experts to consult politics.He noticed the extraordinary influence of senior academic elites such as Jiang Ping, Zhang Zhuoyuan, and Wu Jinglian in China's political life, and the biggest characteristic of these octogenarian scholars is that they are not affected by promotion or relegation, have sharp thinking, dare to tell the truth.Observers believe that the "Jiangping Phenomenon" highlights the openness of China's social and political life, and reflects the more enlightened democratic spirit of top leaders.