First, the historical track of the emergence and development of western economic law
(A) the historical background of the emergence and development of western economic law
The word "economic law" first appeared in the book "Code of Nature" by French utopian Molleri, and modern economic law appeared in the western capitalist countries at the end of 19 and the beginning of the 20th century? During the primitive accumulation of capitalism, the theory of mercantilist market economy prevailed, advocating that the government should give aid to its own economy, even at the expense of war? Squeeze out foreign competitors? Is there a lack of realistic foundation in economic law during this period? From the18th century to the end of19th century, capitalism was in the stage of free market, and most capitalist countries advocated Adam Smith's classical market economy theory and rationalistic state function theory? Capitalist countries play the role of "night watchman" in the social and economic fields, and political rule becomes the central function of the country? Although the state also manages some social economy, it obeys the political rule of the state [1]? During this period, administrative law, especially civil and commercial law in western countries was highly developed, and the development of administrative law and civil and commercial law did not leave much room for economic law in the sense of state intervention. /kloc-from the end of 0/9 to the 1970s, capitalism entered the stage of monopoly, various contradictions within capitalist countries intensified day by day, and economic crises kept happening? In particular, the economic crisis of 1929- 1933 has hit many countries hard? In order to solve the problems brought by the crisis, governments all over the world have broken the absolute boundary between economic life and political life and fully intervened in economic life? The mainstream economics in this period was the theory of state interventionism, represented by Keynes? He published Employment on 1936. The general theory of interest and money systematically puts forward a series of viewpoints and policy propositions of state intervention in the economy? It can be seen that after the development from free competition to monopoly, the "invisible hand" can no longer fully meet the market demand. To solve the problems in the market, we can only use the means of state intervention in the economy? Due to the government's intervention in economic life, the dividing line between traditional civil life and political life has been broken, and there has been an economic relationship in economic life that cannot be solved by simple means of public law and private law? This economic relationship needs a new legal department to adjust, which is economic law? After 1970s, state interventionism was questioned. In the period when economic liberalism represented by supply school is coming back, the dominant position of Keynesianism is replaced by new economic liberalism? The supply school does not oppose the state's necessary intervention in social and economic life, but resolutely opposes the state's excessive and comprehensive intervention? Think that economic life should be dominated by the direct self-regulation of the market, supplemented by the indirect macro-control of the state?
(2) The emergence and development of economic laws in major western capitalist countries.
Before the western capitalist economic law came into being, civil and commercial law was the main way to adjust economic relations? At first, capitalist countries attached great importance to the legislation of market order supervision. Since the mid-20th century, western countries have emphasized the macro-management and supervision of the economy, and started to make various plans, trying to find the best point between the "invisible hand" and the "national hand" [2]? Germany's social market economy system, market competition freedom and government supervision authority complement each other? The development of German economic law can be roughly divided into three stages: the first stage (from the end of 19 to before World War I), the main legislation is that Germany promulgated the first anti-unfair competition law-trademark protection law, and 1896 promulgated the anti-unfair competition law? In the second stage (during the two world wars), during the first world war, the economic law promulgated by Germany was a general authorization law? Notice on limiting the maximum price of the contract? After the first world war, in order to restore the economy destroyed by the war, Weimar Republic abolished the wartime economic control law on the one hand, and followed the legislative principles of wartime economic law on the other hand, and successively promulgated the cartel rules law? Coal economic law? Potassium salt economic law? A series of economic laws, such as the Law on the Prevention of Abuse of Economic Rights, have set a precedent for clearly applying the concept of economic law to legislation itself [3]? The third stage (after World War II) After World War II, Germany split into East Germany and West Germany? Under the influence of American liberal democracy, West Germany embarked on the "third way" and implemented the social market system? In the early postwar period, the anti-cartel law was implemented according to the instructions of the occupying forces? During the period of 1966- 1967, an economic crisis occurred in Germany. In order to ensure sustained economic growth, the Law on Promoting Economic Stability and Growth was promulgated, which is an important macro-control law? The Japanese government intervenes in the market in two ways with the help of economic law, that is, economic law acts on the economic base in two ways: one is to maintain the competition order and give play to the market function; Second, the state regulates the whole national economy and market operation, and plays the role of government regulation [4]? The emergence and development of Japanese economic law have roughly gone through two stages? The first stage (during the two world wars) At the beginning of the 20th century, the economic structure of Japanese capitalism changed obviously, and monopoly capitalism gradually formed and grew? Japanese cartels appeared in the mid-Meiji period. At first, Japan adopted a policy of protecting and supporting cartels? The Japanese government has successively promulgated the Export Combination Law and the Organization Law of Important Export Commodities Production, both of which are compulsory cartel laws, which regulate organizations that have not joined cartels and make them subordinate to cartels. 193 1 Important Industry Control Law and 1932 Industrial Merger Law are also laws to promote cartels [5]? The second stage (after World War II) After World War II, Japanese rulers attached great importance to regulating and managing the economy by economic means and formulated a large number of economic laws in the process of restoring and developing the economy? In order to prevent the dissolved chaebol from reviving monopoly capital, the Japanese government promulgated the Law on Prohibiting Private Monopoly and Ensuring Fair Trade in 1947, and also promulgated the Law on Eliminating Excessive Concentration of Economic Power? Since 1952, Japan has entered a period of rapid development for 20 years. The important legislation in this period was the Law on Rationalization and Promotion of Enterprises? Basic law for small and medium-sized enterprises? Basic agricultural law? Basic Law on Consumer Protection, etc. Since 1970s, Japan has devoted itself to getting rid of the crisis. Revitalize the economy? Through legislative activities, the original economic law was constantly improved. The main legislation in this period was the Law on the Prevention of Speculation? Emergency measures to stabilize national life law? Oil supply control act? Rationalization of energy use? Small and medium-sized enterprises bankruptcy mutual assistance law? The emergence and development of American economic law can be roughly divided into three stages: the first stage (from the end of 19 to 1929 before the world economic crisis). After the completion of the industrial revolution, there was a monopoly in the United States that greatly hindered free competition, causing widespread anxiety and dissatisfaction? The U.S. government sized up the situation, took the initiative to intervene and promulgated a series of anti-monopoly and anti-competition laws? The main economic legislation includes: 1890. In 1990, Congress passed the Law on the Protection of Trade and Commerce from Illegal Restriction and Monopoly, and then passed the Crayton Act and the Federal Trade Commission Act? In the second stage (1929, when the economic crisis broke out to the end of World War II), 1929, the world economic crisis caused a devastating blow to the American economy? After Roosevelt came to power, he comprehensively intervened in economic life by enacting economic legislation? During this period, the United States promulgated more than 70 economic decrees, such as the Emergency Banking Ordinance? Financial reform bill? Industrial Recovery Act? Soil protection law? New agricultural law? National labor relations law? Restoration and relief law, etc. [6]? The third stage% 26lt%26gt Since World War II; After World War II, the United States used Keynesian theory to consciously take economic legislation as a legal means for the state to intervene in the economy, and became a conventional and inevitable means for the existence and development of capitalist mode of production? The main economic legislation in this period was the economic recovery tax law of 198 1? Economic recovery law and tax law 1986, etc.
Second, the historical track of the emergence and development of China's economic law
(A) the historical background of the emergence and development of China's economic law
China implemented a highly centralized planned economy system before the reform and opening up? At that time, planning was the only way for the country to allocate resources? Facts have proved that in the early days of the founding of the People's Republic of China, China chose planning as the way to allocate resources, which was in line with the social requirements at that time, was conducive to concentrating limited resources on urgently needed undertakings, and enabled China to quickly recover from economic ruin? However, after the planned economy completed its historical mission, China did not transform the planned economy into a market economy? Economic practice and theoretical research in the 20th century show that the failure of planned economy stems from its two inherent disadvantages: one is the obstacle of information mechanism, and the other is the obstacle of incentive mechanism? Experience shows that the planned economy system may have the ability to learn advanced scientific knowledge and production technology from others, but it does not have the ability to create new scientific knowledge and production technology? In addition to the inherent defects, the defects of the planning system are that its implementation depends on the efficiency and selflessness of government officials, the main body of the plan? Because all the actors in the government act according to their own interests, and the civil servants in power lack the sense of competition and care about the cost, the government's activities cannot be as efficient as the people expect. The "economic man" nature of government officials often makes the result of government intervention deviate from its original intention, thus leading to "government failure"? The combination of highly centralized planned economy and lack of democratic political system triggered the Cultural Revolution, which brought our economy to the brink of collapse? Since 1978, China's reform and opening-up has been a process in which the party and the government have rebuilt the seriously damaged legitimacy foundation in the face of the "legitimacy crisis", conforming to the needs of the times and greatly liberating the productive forces? Under the highly centralized planned economy, taking planning as the only means of resource allocation will inevitably make China's economic system lose its efficiency and development momentum and trigger a social crisis? The failure of state intervention inevitably requires the introduction of market forces into the planning system. In the process of combining "the hand of the state" with "the hand of the market", China's economic law came into being? With the deepening of people's understanding of planning and market regulation, China's economic system reform has gone through three stages of development. The first stage: at the beginning of the reform, people began to realize the disadvantages of a single planned economy, thus implementing a model in which planned economy is the main market regulation is supplemented; The second stage: from the Third Plenary Session of the Twelfth Central Committee to the Fourteenth National Congress, a planned commodity economy based on * * * ownership will be implemented; The third stage: implementing the socialist market economy model after the 14th National Congress? Accordingly, the economic law that provides institutional guarantee for China's economic system reform has also experienced a process from immaturity to maturity?
(B) The emergence and development of economic law in China.
The emergence and development of China's economic law can be divided into two stages: the first stage (from 1979 to 1992), which is the emergence and initial development period of China's economic law; The second stage (from 1992) is a period of prosperity and maturity of China's economic law? With the transformation from planned economy to planned commodity economy, economic law was born in China? 1979 the law on sino-foreign joint ventures is the first economic law since the reform and opening up? During this period, economic law and statistical law? Forest law? Land management law? Sino-foreign joint venture income tax law Personal income tax law? The law on industrial enterprises owned by the whole people, in addition to a large number of economic and administrative regulations formulated by the State Council? With the rise of economic law, civil and commercial law also came into being and developed. Economic contract law? General principles of civil law? Marriage law? Succession law and a series of important civil laws have been passed one after another? After a correct analysis of the situation at home and abroad, the 14th National Congress of the Communist Party of China made a decision to establish a legal system of socialist market economy.
The Historical Track of the Emergence and Development of Chinese and Western Economic Laws and Their Differences
Historic choice? The National People's Congress and its Standing Committee seized the opportunity of legal system construction and attached importance to economic legislation, which enabled China's economic law to enter an unprecedented period of rapid development and initially formed a relatively complete socialist economic law system? At this stage, the market regulation law sprang up suddenly, and the macro-control law formulated before constituted the main part of China's economic law? The economic laws in this period mainly include the Anti-Unfair Competition Law? Consumer protection law? Product quality law? Advertising law? Bidding method? Tax collection and management law? Budget law? China People's Bank Law? Commercial banking law? Audit law? Price method? Labor Law and so on?
Third, the differences between Chinese and Western economic laws and their enlightenment
The basic characteristics of Chinese and western economic laws are the same, and they are all interventions by the state in order to overcome the blindness and limitations of market regulation, correct the deficiency of market mechanism and safeguard the interests of the public? Coordination? Balance and adjustment, realize social fairness and efficiency, and realize healthy, rapid and sustainable economic development [7]? What is the economy on which Chinese and Western economic laws are based? Politics? Cultural differences and other factors determine the differences between Chinese and western economic laws. By analyzing the historical track of the emergence and development of Chinese and western economic laws, the author believes that the differences between Chinese and western economic laws are mainly manifested in the following three aspects:
First of all, judging from the background and starting factors of economic law, China's economic law is not born out of the economic environment of free competition, nor is it a natural product of economic development to a certain stage, but the government is a part of the legal project in the process of reform and opening up, and it is also a positive response of the country as the main body to meet external challenges and the requirements of the times [8]? Therefore, China's economic law is not spontaneously generated within the society, but is actually a process in which the government consciously changes from refined management to continuous decentralization, which is government-driven? Western economic law came into being under the background of the transition from a free market economy to a monopoly market economy. The specific way is market failure-civil and commercial law can't make up for it-intervention restricts liberal countries-economic law comes into being, which is the product of continuous improvement within the market economy and belongs to a natural evolution type?
Secondly, the legal environment of economic law is also very different? Due to the long-term feudal autocratic rule and the corresponding self-sufficient and closed economic form, as well as the influence of the concept of stifling the market economy in the early days of the founding of New China, the foundation of China's market economy is weak and the horizontal economic relations are shrinking, which is reflected in the denial of private law by law and the Soviet Union, that is, the absence of civil and commercial law? With the transition of China's economic system, micro-economy is gradually liberalized, and government functions are constantly changing. Economic law and so on were introduced almost at the same time? The western market economy is constantly developing and gradually maturing naturally, so correspondingly, various legal systems regulating economic behavior have also gone through the process from gestation to maturity. Separation to independence? A mature development process? In criminal law? After the full development of civil and commercial law and administrative law, economic law was born naturally? Western economic law is formed on the basis of the development of civil and commercial law, in order to make up for the deficiency of civil and commercial administrative law in adjusting economic relations. Is it "anti-civil law" The road of "different civil laws" China's economic law was developed in the absence of civil and commercial laws, not to make up for the shortcomings of civil and commercial laws, but to coexist and prosper with them? * * * have development?
Finally, the path of economic law is very different? In the process of the formation of western economic law system, the market regulation law came into being before the macro-control law? The market regulation law came into being in the period of private monopoly capitalism, and the macro-control law came into being in the period of state monopoly capitalism. In China's economic law system, the macro-control law was first produced, and the market regulation law was only produced after the initial development of economic law [9]? The formation path of social standard between them is also completely different? The social standard of western economic law is developed on the basis of individual standard, which is a sublation of individual standard. Is the social standard of China's economic law developed from the national standard, or is it a revision of the national standard? China's economic law came into being in the process of transition from planned economy to modern market economy, and its development starting point lies in regulating the government's intervention in economic behavior; Western economic law came into being in the process of the transition from a free market economy to a modern market economy, and the starting point of its development lies in standardizing market competition behavior?
From the above analysis, we can know that there are many differences between Chinese and western economic laws, such as different historical tracks and laws of production and development, and different problems and tasks? The realistic foundation of China's economic law is the immature socialist market economy, which should not only overcome the market failure, but also cultivate and develop the market. At the same time, because China's market economy is dominated by the government, and China's economic law originated from the planned economy system, China's economic law also shoulders the heavy responsibility of regulating and restraining the government's economic behavior in order to play the basic role of the market economy and prevent the abuse of intervention? History shows that people's past choices determine their possible choices now [10]? We can't ignore the objective existence of the differences between Chinese and western economic laws? At present, most scholars of economic law in China start from the assumption that Chinese and western economic laws are consistent, and only demonstrate the general laws of economic law with western economic law as the reference system? If we don't combine the national conditions of China, we can completely replace the individuality of China's economic law with the individuality of western economic law, and then replace the whole economic law with the individuality of western economic law [1 1]. Therefore, analyzing the particularity of the emergence and development of China's economic law should be the starting point of studying China's economic law theory. Only by grasping the independence of China's economic law can we have a correct understanding of China's economic law, and only from here can we truly establish China's theoretical system of economic law? For the development path of China's economic law, the correct choice should be to set aside the shackles of western economic law and start from the realistic foundation of China's socialist market economy to build a socialist economic law with China characteristics?
References:
[1] Qi Duojun. On the three stages of market economy development and its legal guarantee system [J]. Law, 1999, (2):56.
[2] Xiao Guanghui. Several problems in the theory of world economic law in the 20th century [A]. This is Hua Qin. The frontier of foreign economic law in the 20th century [C]. Beijing: Law Press, 2002:66.
[3] Li Changqi. Economic law-the basic legal form of state intervention in economy [M]. Chengdu: Sichuan People's Publishing House, 1995:42.
[4] Cheng Xinhe, Liu. The role of comparative law in Japanese economic development and its enlightenment to China [J]. Law Review, 1999, (2):65-66.
[6] Qi Duojun. Basic theory of economic law [M]. Wuhan: Wuhan University Press 2000: 282,47.
[7] Tan Xixiang, Tang Xiaodong. Comparison of the differences between Chinese and Western economic laws and reflections on China's economic legislation [J]. Journal of Guangxi University of Political Science and Law Management, 2003, (2):65.
[8] Liu Chao, Zhang Hao. The construction of economic law system should pay full attention to international resources and local resources [J]. Journal of Guangxi University of Political Science and Law, 2002, (2): 13.
[9] Wang Jijun, Li Jianren. Economic law is an organic combination of market regulation law and macro-control law [J]. Law, 1999, (1):88.
Douglas North. Structural changes in economic history [M]. Translated by Chen Yu and others. Shanghai: Shanghai Sanlian Bookstore? Shanghai People's Publishing House, 1996:2.
Liu Wenhua. 1998 review and prospect of economic law research [J]. Jurist, 1999, (2):89