WTO Rules and the Theoretical Innovation of Chinese Economic Law: A Perspective from Law and Economics

Author: Zhou Linbin
Publisher:
Publish Date: 2003-11-01
Features: With the entry into the WTO, China's economic development has gained unprecedented opportunities, while also facing huge challenges. The times call for legal talents who understand WTO rules, and China's economic law needs innovation in the new historical context. Only in this way can we meet future competition. This book stands at the forefront of the times, analyzing and elaborating in detail how WTO rules and China's economic law can innovate from a certain height. The ideas are highly forward-looking, and it is believed that they will greatly benefit every reader with ambitious aspirations.
Excerpt: The number of regulations on foreign-related business operations.
(1) 1. Why is the regulation of the behavior of market entities emphasized while the regulation of government behavior is neglected? The reason why China's economic law emphasizes the regulation of the behavior of market entities while neglecting the regulation of government economic management behavior lies in the fact that China's economic law regards the business relationships between market entities as its main object of regulation. This positioning of China's economic law's regulatory object is based on the following facts and logical judgments: China's market system is in its initial stage, and the chaos in the market order is mainly manifested in the various unfair competitive business behaviors of market entities that violate market laws, so the business relationships of market entities should be the focus of regulation of China's economic law. Moreover, to effectively regulate the business behavior of market entities, the laws and regulations that regulate the business behavior of market entities are necessary to be formulated by the government as mandatory regulations and applied in accordance with the principle of "statutory priority over contractual," so as to achieve "strict enforcement." Therefore, under the banner of rectifying the market order according to law, China's economic law is primarily defined as a general term for legal norms that manage and regulate the business behavior of market entities, that is, the so-called economic administrative law for managing market entities. This is inevitable. Indeed, the positive significance of China's economic law regarding the business relationships of market entities as its main object of regulation lies in the fact that it is conducive to establishing the administrative authority of the government, enabling the government to constrain private business behavior through strict legal rules and prevent various unfair competitive behaviors that pursue profit maximization from disrupting market order. However, while acknowledging the positive significance of the above-mentioned adjustment object of China's economic law, the author believes that because China's economic law is the main legal means for the government to manage the economy, it has given rise to the "preference" of the Chinese government for economic law, which has led to the phenomenon of the "generalization" of "economic administrative regulations for managing market entities" under the banner of "the government managing the economy according to law" in the construction of market economy rule of law in China.
(1) 2. The "generalization" of China's economic administrative regulations and its roots. On a global scale, as the social and economic functions of governments in various countries strengthen, governments enjoy increasingly greater legislative power, and the legislative power of governments in the economic management legislative system becomes increasingly important, and a general trend of expansion of economic administrative regulations is present. From the perspective of China's actual situation, the administrative regulations and rules of the State Council play a connecting role between the Constitution, laws, and local regulations. The social relationships and matters it regulates are far broader and more specific than those regulated by the laws of the National People's Congress and its standing committee. Matters in the state's foreign-related economic activities, as long as they are not fundamental or relatively important and must be adjusted and regulated by the Constitution and laws, can be adjusted and regulated by government economic administrative regulations. According to incomplete statistics, from 1979 to 1999, the State Council and its ministries and commissions formulated more than 400 regulations and rules related to foreign-related economic management matters, which is about seven times the number of foreign-related economic laws established by the National People's Congress and its standing committee.
(2) Since 1979, about 70% of the foreign-related economic laws established by the State Council have been proposed by the State Council.
(3) During the period from 1979 to the first half of 1999, the currently effective laws