The Transformation Of The Economic Law Research And Transformation Of Economic Law

Based on the actual social situations of China, which is still in its transitional period, the thesis sets out to tackle a series of key theoretical issues of economic law of China. It points out that the traditional research work of China has come to a dead end. If the economic law of China is to interpret in a real sense the true state of the Chinese economy, it should back away from the blind alley that it is in now. Namely, it should stop from mechanically copying Western economic laws; instead, it should blaze a new trail for itself by basing its theories on the actual conditions of China. The author argues that the very reason for the dead end facing the Chinese economic law lies in the fact that the Chinese economic law fails to base itself on a solid understanding of the economic practices of China during its transitional period. The very failure also accounts for the fact that why the Chinese economic law theory, grandiose as it seems, hardly plays any role in guiding and interpreting the social economic conditions of China. In this thesis, the author proposes a new concept, namely transitional economic law, and with this inclusive concept as an umbrella, the author criticizes the existing research methods of Chinese economic law, clarifies the fogginess shrouding the research of Chinese economic law, describes the Chinese economic law as it is, that is, a law that aims to improve economic administration and enrich the people, as well as defines the Chinese economic law as it should be—an economic law that is reflective in nature and enshrines the rule of law, with the competition law as its core.This thesis consists of six chapters. Chapter one reviews the current state of Chinese economic law research, the impasse as well as the challenges it is faced. The chapter points out that the root of the disorderly contention between different schools of Chinese economic law lies in the fact that the existing Chinese economic law theories cannot solve or interpret the problems arising in actual economic practice of China during its transitional period, as the traditional research model of Chinese economic law is totally based on the theory and practice of Western economic law and fails to take the actual conditions of the Chinese economy. It is therefore only natural that such an economic law cannot play any effective role in interpreting the realities of Chinese economy.The second chapter focuses on the rise of social legal science and the death of the traditional approach in economic law research. Although the traditional approach can remain standing for quite some time, those so-called concepts and categories unique in economic law will no longer remain exclusive. Therefore, the theorization of social legal science has triggered another wave of panic and division. With the futile and weak defense of the Chinese economic circle, the Chinese economic law is becoming more and more metaphysical. The metaphysicalization of a material law is not the sign of the deepening of its research work. Rather, it is the manifestation of its futile struggle. The time calls for a new theory that can interpret the legal economic phenomena of China that is in its transitional period.The third chapter deals with the misinterpretation by Chinese economic law circle of Western social legal science theories, which, the author of the thesis argues, are responsible for the mistakes in Chinese economic law research as well as its failure to interpret the practice of Chinese economic law. Without a thorough understanding of the Western economic law theories, the Chinese economic law circle cannot learn from them in an effective manner, because Western law theories are based on Western economy and society, in other words, Western law theories are local-specific knowledge. Therefore, blind and mechanic parroting Western law theories will be fruitless indeed. Among the many schools of law theories, the one that exerts most influence over the research of Chinese economic law is the school of social legal science, whose major theories and proposals have greatly influenced the Chinese economic law research, both in terms of terminology and thinking patterns. In this chapter, the author first presents a panorama of the school of Western social legal science; then introduces the major representatives of the school and their views; lastly the chapter focuses on the enormous influence the school of Western legal science has over Chinese economic law, emphasizing the grave misinterpretation by Chinese economic law circle of the school of Western legal science. The author argues that only by rooting itself in the actual economic practice of China during its transitional period can the research of Chinese economic law benefit by learning from the school of Western social legal science.The fourth chapter: the misinterpretation by the Chinese economic law circle of Western post-modern law theories. Great as its influence on Chinese economic law research is, the Western post-modern is not compatible with the Chinese economic law as it is now due to the fragmental and deconstructive nature of the former. The post-modern law theories can do more harm than good for China, an ancient nation with little tradition of liberalism and the rule of law. Accordingly, developing an economic law theory that" enshrines the rule of law and is reflective in nature is the direction that the Chinese economic law should head for. In this chapter, the author begins with a introduction to the basic characteristics of Western post-modern law theories, including some of the major representatives of the post-modern jurists and their views. The author ends the chapter with an analysis of the blind worship and misinterpretation of Western post-modern law theories, pointing out that there is an unhealthy trend within the Chinese economic law circle, namely, being content with a superficial understanding of Western post-modern law theories, which trend, the author argues, not only hinders the further development of Chinese economic law research, but also will ferment the metaphysicalizing trend in Chinese economic law research. To master the essence of Chinese economic law, we should first and foremost do a thorough and meticulous research into the social and economic realities of China.Chapter Five: general characteristics of China and Chinese laws during the transition of China. To understand Chinese economic law, it takes a thorough understanding of the general characteristics of Chinese laws and China which is still in its transitional period or an accurate description of Chinese economic law would not be possible. In this chapter, the author argues that the transitional China has four characteristics:1. three schools of thoughts are contending and interacting fiercely, forming a complex thought pattern for China;2. After twenty years of rapid economic growth, central planning and free market forces, power and rights are co-existing and intertwined;3. In the face of the slowing moving political reform, the Chinese society is changing by the passing day and the rule of law is already dawning on China.4. China is already integrated into the world and it is no longer possible for China to ignore the world. The world is changing China and conversely China is also influencing the world.In addition, the author also discusses the general characteristics of Chinese law. Chinese law is still caught between its tradition and its modernization, with both strong modern elements and a very visible traditional heritage. As the ones of the laws which are most closely related to the changing of Chinese society, the Chinese economic law is inevitably branded with the marks of the time, with the economic law on transitional economy as the most vocal example.Chapter Six: Economic law on transitional economy as it is and as it should be. This chapter is a conclusion drawn on the basis of the previous five chapters. This chapter presents the core category, economic law on transitional economy and points out that the existing economic law as it is in China is a law aiming at economic administration and people's livelihood. Its system is large, yet it is not clearly defined. Besides, within its systems there exist two laws which are very different from each other in nature: one is the traditional law on economic administration; the other, however, is a law with modern elements, which aim at macro-regulation and market order. Due to the co-existence, the system and theoretical framework of Chinese economic law will remain loose and imprecise, turning the Chinese economic legislations and regulations into mere policies. On the other hand, however, due to the modern elements within the Chinese economic law that are already there and are strengthening constantly, the Chinese economic law will inevitably develop into a law with competition law as its core, which is the Chinese law as it should be.