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: The number of regulations on business operations outside the book excerpt.
⑴1. Why is the regulation of market entities' behavior emphasized while that of government behavior is neglected?
The reason why China's economic law emphasizes the regulation of market entities' behavior while neglecting the regulation of government economic management behavior lies in the fact that China's economic law regards the business relationships among market entities as its primary object of regulation. This positioning of the regulatory object of China's economic law is based on the following facts and logical judgment: China's market system is in its initial stage, and the chaos in the market order is primarily manifested in the various unfair competitive business practices of market entities that violate market laws. Therefore, the business relationships of market entities should be taken as the focus of regulation by China's economic law. Moreover, to effectively regulate the business behavior of market entities, the laws and regulations that regulate market entities' business behavior must 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 and prohibition." Thus, under the banner of legally regulating market order, China's economic law is primarily defined as a general term for legal norms that manage and regulate the business behavior of market entities, i.e., the so-called economic administrative law for managing market entities. This is inevitable.
Admittedly, the positive significance of China's economic law regarding the business relationships of market entities as its primary object of regulation lies in the fact that it helps establish the authority of government management, enabling the government to constrain private business behavior through strict legal rules and prevent various unfair competitive practices pursued by market entities for profit maximization from disrupting market order. However, while acknowledging the positive significance of the above-mentioned regulatory object of China's economic law, the author believes that since China's economic law serves as the main legal means for the government to manage the economy legally, it has given rise to the "preference" of the Chinese government for economic law. As a result, under the banner of "the government managing the economy legally" in the reform of the market economy legal system, there has emerged a phenomenon of the "generalization" of "economic administrative regulations for managing market entities" with the primary content of regulating market entities' behavior.
⑴2. 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 government legislative power plays an increasingly important role in the economic management legislative system, with a general trend of expansion in economic administrative regulations. From the perspective of China's actual situation, state council administrative regulations and rules play a connecting role between the constitution, laws, and local regulations. The social relationships and matters they regulate are far broader and more specific than those regulated by the laws of the National People's Congress and its Standing Committee. In the state's foreign economic activities, matters that are not fundamental or relatively important must be regulated and stipulated by the constitution and laws, while government economic administrative regulations can regulate and stipulate them. According to incomplete statistics, from 1979 to 1999, the state council and its departments formulated more than 400 regulations and rules related to foreign economic management matters, which is about seven times the number of foreign economic laws established by the National People's Congress and its Standing Committee.
⑵Since 1979, about 70% of the foreign economic laws established by the state council have been proposed by the state council.
⑶During the period from 1979 to the first half of 1999, the currently effective laws formulated were...