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On Necessity of National Limited Regulation in Private Realm

Author: LiuMingKui
Tutor: LiuHongZhen
School: Jilin University
Course: Legal Theory
Keywords: Public authority Private Realm Private law Organization
CLC: D90
Type: Master's thesis
Year: 2010
Downloads: 54
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National mandatory and individual freedom is an endless subject which has been disputed by political philosophy and jurisprudence. Communitarianism and socialists tend to place rights of individuals in national context, while liberalists think that the State itself is created by individual freedom. Personal freedom is worth more than the State’s. We can clearly see that through Modern European political reality: European mainstream liberal political theory is liberalism. People placed the freedom of individuals a higher rank than the State. Which reflected in the political structure is constitutional politics. State power is divided into legislative, executive and judicial powers. Though three powers checks and balances so that people can protect private rights. The idea of personal protection is also penetrated into the legal system deeply. In the field of criminal law, investigating the responsibility of the defendant held to the principle of legality, the presumption of innocence, the principle of appeal procedure. Which’s purpose is to fully protect the rights of the accused. In the field of civil law, The protection of private rights is fundamental and thorough, it influences every aspect of life. To take care of ownership, civil law held a sacred principle of ownership; the state can not deprive private property with an illegal reason. The contract law holds a principle of freedom of contract. Individuals can do anything which the law is not prohibited without the state’s intervention. For respect of the individual the tort law takes the principle of fault liability, individuals only responsible for acts of their own fault, the actions of others, where innocent acts can not be perpetrator liable reasons.The value choice of the West is based on a far-reaching theory and reality. In theory, the West has a long tradition of liberalism, which could be traced back to ancient Greece. In reality, the dual rule of medieval church and secular regime is the underlying causes of fear of European powers. After Enlightenment and the subsequent movement of natural law, liberalism became the social mainstream of value theory. People set the political structure in accordance with the ideal picture, and tried to open up one field in living area for avoiding the invasion of public power. This area is built up by private law called "private domain."However, society and social life has changed. The field was considered absolute autonomy in private law at first appears at different degrees infiltrated by the national authority. Ownership is no longer sacred, principle of freedom of contract just over quietly to contract justice; the principle of fault liability is no longer able to rule the field of tort law. All of these are declaring that the power of state is regulating private life, and providing direction of the private lives of individuals. why such a result can appear? where the deviation appears in the private law set its own ideal?Any social scientific theory should be established on the basis of understanding of human nature, and liberal philosophy is no exception. Guided by its theory, the Modern theory of rule of law, private law theory of autonomy is based on the assumption of human perfection. Individual assumed by Private law is a moderate selfish rational person, he advocates freedom, peace-loving and can harmony with people, designs for their future cautious, and even with a degree of ethics property, he can consider the interests of others. Private law assumed an environment which is a peaceful and Resource-rich environment; as long as people work hard he can achieve what he wants. Based on these assumptions, private law thinks that setting clear rules, which people follow, they take what they want. People get along with the rules, where there is no need for state power intervention in personal life. The state power excluded the "private domain”, preventing the phenomenon of public right violating private rights. Private’s vision is perfect, but its assumption is unscientific and unrealistic. Human nature is full of evil and selfishness, the forces of destruction and devastation in the human heart and guide people to restrict people’s behavior, although this behavior appears as people making rationally. What rational human beings have is limited, it is not sufficient to restrain the real human beings and people can not make action in accordance with the requirements of ethics. Natural resources are insignificant to meet human desire. In order to compete for limited resources, people are killing each other.The non-regulatory of the state power area opened up by Private law is actually a natural state. In the natural state, people composed organizations. The organizational strength is far greater than that of individual. Organizations and organizations fight with each other which create a result that the ruler of the private world became the one who can control others by his power. That is monopoly. The emergence of monopoly is the consequence by running rules of private law. The domination and control of organizations to personal life is through economic, cultural and other means. In economical area, organization use its economic advantages to get unequal benefits with other subjects in the course of contract; in culture area, organization instill its idea through merchandise, advertising and consumption concept in order to achieve the purpose of greater good; organization use its advantages of the knowledge to avoid responsibility. Organizations predatory develop natural resources, ignoring the consequences in the future. The interests got by individuals in the development process is subtle, even is vain. But he must bear the responsibility of this, which includes pollution, while organization avoids responsibility again by using its own advantages, "organized live responsibility.”Without power control in a natural area of private law, pursue of justice was completely ruined.In this case, regulating the field of private law is essential, and also has legitimacy. The question is who can and should do it. Country as a ruler of the society should control human’s misconduct. State is produced by contract. Before the contract the state is similar to the state of nature opened by private law. The consequences of human mutual fight is to die, to prevent this consequences, people contract to establish its own country. The creation of the State is to overcome people’s own weaknesses. Internal functions of State include: function of integration, function of distribution, and function of correction. The state shaped of society and regulated its development direction intentionally or unintentionally. States should be responsible for the chaos in the field of private law, so the autonomy of private law also need state’s regulation. That modern labor law separated from the private law and the appearances of the economic law department all prove these.

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CLC: > Political, legal > Legal > Theory of law (Law)
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