WTO Rules and Theoretical Innovation of Chinese Economic Law (A Perspective from Law and Economics)

Author: Zhou Linbin
Publisher:
Publishing Time: Not Available
Features: The number of regulations on extraterritorial business operations.
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 primarily adjusts the operational relationships between market entities. This positioning of China's economic law's adjustment 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 primarily manifested in the various unfair competitive business practices of market entities that violate market laws. Therefore, the operational relationships of market entities should be the primary adjustment object of China's economic law. Moreover, to effectively regulate the operational behavior of market entities, the laws and regulations that regulate market entities' 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 rectifying the market order in accordance with the law, China's economic law is primarily defined as a general term for legal norms that manage and regulate the operational 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 primarily adjusting the operational relationships and behavioral relationships of market entities lies in the fact that it helps establish the administrative authority of the government, enabling the government to constrain private business behavior through strict legal rules and prevent various unfair competitive practices pursued for profit maximization from disrupting market order. However, while acknowledging the positive significance of the above adjustment object of China's economic law, the author believes that since China's economic law is the main legal means for the government to manage the economy according to the law, it has led to the government's "preference" for economic law in China. As a result, in the construction of the rule of law in China's market economy, there has emerged a phenomenon of the "generalization" of "economic administrative regulations for managing market entities" under the banner of "the government managing the economy according to the law."
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 have gained increasingly greater legislative power, and government legislative power has become increasingly important in the economic management legislative system, with a widespread trend of expansion in economic administrative regulations. From 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 economic 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 China's foreign-related economic activities, matters that 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 chapters 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.
⑵Of the foreign-related economic laws established by the National People's Congress and its Standing Committee since 1979, about 70% were proposed by the State Council.
⑶During the period from 1979 to the first half of 1999, the currently effective laws formulated were...