| "Theory of interest and law", as one of cores in legal theory, includes a content of two aspects, one is that interest gives rise to law and then pushes the development thereof, the other is that law regulates and protects interests of various kinds. Theory of interest of different branch laws with different characteristics, formed by combining with such legal system of "Theory of Interest and Law" with their own natures, are of great significance for not only theory development but practice of respective branch laws. A research on theory of interest and economic law , from the perspective of theory, is of great theoretical sense because such research will exert influence on recognition of functions and value of economic law, and will exert influence on important legal issues of purposes and principles of economic law.Theory of interests, from the perspective of practice, is also needed to direct economic law how to respond to the fact that the serious imbalance of interests' allocation will hinder the social development in China in an era when interests are split off and game for interests has been commonplace. Considering that the current research on theory of interests and economic law mentions much on advocate for values but little on protection of interests, driven by the demand for development of theory of economic law and the requirement made by social practice on economic law, this paper, through systematic research of theory of interest and economic law, attempts to answer such questions that, how to define interest from the perspective of economic law, what criteria shall economic law take for interests protection and how to protect such interests, to make efforts for improvement of theory of interest and economic law.This paper is roughly divided into three main parts. First comes Part of Basic Theory (Chapter One), which approaches basic theory of interest and economic law, and focus on logical starting point of theory of interest and economic law, its theoretical frame and academic pedigree. Second comes Part of Reflection (Chapter Two), which reflects on current theory of interest and economic law in order to sum up characteristics and possible problems of current research and further find out access to construct theory system of interest and economic law. The Part of Construction comes finally (Chapter Three- Chapter Seven), aiming to construct theory system of interest and economic law that consists of ontology, value and methodology. Part of ontology gives answer to definition and classification of interest of economic law, its legal expression and inner structure. Part of value mainly analyzes the criteria economic law shall follow for protection of interests. Part of methodology, pursuant to protection mechanism of interests, attempts to figure out how to protect interests in stages of legislation, law enforcement and judicature. This Paper, based on aforesaid logic, is divided into seven chapters as follows.Titled "Basic Theory of Interest and Economic Law", Chapter One is the theoretical basis of this paper, which aims to analyse logical starting point of theory of interest and economic law, its theoretical frame and academic pedigree. This dissertation focuses on three problems: recognition of interest, relationship between interest and law, and manifestation of theory of interest and law. As for recognition of interest, this paper, through analysis of etymology of interest and concerning theory, makes the plainest definition of interest from the perspective of 'life world" in phenomenology, i.e. the satisfaction of human demand, hence no need for so called accurate definition thereof, which eventually bases the logical starting point of theory of interest and economic law on the interest of real life. Second to the aforesaid is the inner frame of interest and law which analyzes how to construct theoretical frame of the theory of interest and economic law. From perspective of logic, the relationship between interest and economic law is a reflection of the relationship between interest and law in branch laws, i.e. a relationship between individuality and universe. Thus how to connect the interest and economic law needs going back to the fundamental structure of relationship between interests and law which indicates that interest is the basis of law and vice versa law safeguards interest The inner structure of relationship between interest and law constitutes the theoretical frame of theory of interest and economic law. In the end comes the theory of interest and law which accounts for the academic pedigree of the theory of interest and economic law. This part starts with vertical and vertical horizontal analysis. As for the former perspective, this paper sums up a research route from "origin of theory of interest" to "theory of interest in production", then to "theory of interest in methodology", so that the research on theory of interest and economic law follows the tradition of "theory of interest and law", which is of sense of passing on traditional knowledge and enriches the theory resources for the study of the dissertation. As for the latter perspective, this paper makes a brief analysis of expression of "theory of interest and law" in branch laws and attaches more importance to, its expression in criminal law, civil law and administrative law, in order to indicate that theory of interest of economic law shall be constructed according to natures of economic law and hence be of characteristic.Titled "Reflection on Current Research on Theory of Interest and Economic Law", Chapter Two first makes an all-round analysis and subsequent summary of current research and then sums up two dominant doctrines of interest "doctrine of social interest orientation" and "doctrine of equilibrium of interest". This paper, through thorough research, concludes that "doctrine of social interest orientation " may be divided into "doctrine of social interest orientation in broad sense" and "doctrine of social interest orientation in narrow sense", and that the former, although different from " doctrine of equilibrium of interest" in exact form of expression, is similar in comprehensive protection of interests of various kinds. The "doctrine of social interest orientation in narrow sense", from the perspective of theory of social entity, takes the society as an organic part and protects its interest only, i.e. social interest, which is considered having prevailing value. This chapter then makes careful reflection on current research on theory of interest and economic law. This paper, through a research on archaeology of knowledge, concludes that the judgment, made by scholars finding out the regular pattern of development of law, that economic law is orientated as the law of social interest orientation is a proper location of economic law in legal system. Social interest orientation, however, is a vertical concept to describe law of different stages of development hence not a unique concept of economic law. Furthermore, this paper makes reflection on the viewpoint of "doctrine of social interest orientation in narrow sense", attempts to expound and prove that economic law does not protects only social interest of organic society, social interest independently exists neither prevails over other interests nor serves as the criteria of interest regulation of economic law. In the end, this paper, on the basis of analysis of characteristics of current research, settles the scope of theory system of interest and economic law, i.e. what interest economic law protects, what interest standard economic law follows for interest protection and what method economic law adopts to protect interest, and determine the access to theory system of interest of economic law, which will be constructed from the perspective of ontology, value and methodology.Chapter Three: Basic Recognition of Interest of Economic Law. This chapter, as the part of research on ontology of theory of interest and economic law, is to answer what interest of economic law is, its classification, exact forms of expression in present laws and inner structure. This paper, from the perspective of interest in life and according to the analysis route from "interest in life" to "interest in law", concludes that the intensive meaning of interest of economic law is the "interest in life economic law protects", and that such interest, although arising out of economic aspect, does not always own economy-related characteristics and is not the unique content of economic law except the way economic law protects it. When classifying interest from the perspective of economic law, apart from traditional classification of personal interest, social interest and state interest pursuant to common " subject standard", this paper also divides interest of economic law into economic interest and non-economic interest pursuant to " standard of interest content", divides it into right and legal interest pursuant to "standard of expression of interest in law, and pursuit of interest, receipt of interest, procurement of interest, possession of interest, interest from exemption and interest from relief pursuant to " standard of the way interest subject obtain interest", which helps in understanding more profoundly interest of economic law. As for the scope of interest economic law protects, this paper makes us have a clear idea of the legal expression of interest of economic law through careful analysis of important woks of economic law so that the understanding thereof will no longer limited to the theory aspect. This paper analyses the inner structure of interest of economic law from two perspectives i.e. conflict among personal interest, social interest and state interest, and inner conflict respectively in personal interest, social interest and state interest, so that we may go further into the inner structure of interest of economic law.As the part of research on issue of value of interest and economic law, Chapter Four, "Value Criteria for Protection of Interest of Economic Law", does not going into all value issues but focuses on the issue of value criteria, which shall be follow strictly by economic law in stages of acknowledgement by legislation, guarantee by law enforcement and maintenance by judicature of interest. This paper holds that, unlike value target and value content, value criteria serves as a standard for comments by certain subject on various legal issues, among which current research fails to make strict discrimination. As there exists in value criteria for protection of interest of economic law a confrontation of principles between "utilitarianism" and "justice", a system of value criteria is so difficult to be constructed that a solution to this problem shall entail a break-through in the conflict between "utilitarianism" and "justice". This paper, by reference to principle of utilitarianism and "Roles' Justice Theory", bring about a new order of value criteria including three exact principles as follows: Basic freedom and right as a first priority, which implies that the top priority of economic law when it regulates interest is to protect basic freedom and right, which shall not be interfered out of demand of interest of majority of people; realization of justice in communication, reflecting economic freedom and democracy, which is achieved by interest negotiation through adequate talk and consequent mutual compromise on the premise of guaranty of basic freedom and right and of interest exchange; comprehensive maximum of interest, which means that maximum of social interest as a whole shall be the standard for interest regulation in case of failure to achieve settlement through communication. Such standard includes two subsidiary ones: one is that " maximum of net balance of interest" shall be adopted as standard when the conflict of interest results in detriment to the interest of one party in conflict such party shall be compensated therefor, the other is standard of " increased total sum without detriment to any party" should there be no conflict of interest. Only where the former stand cannot be satisfied, the latter one shall be adopted.Chapter Five, "Acknowledgement of Interest of Economic Law: Distribution by Legislation", is the first part of methodology in theory of interest and economic law. This chapter analyses the issue of acknowledgement of interest of economic law by legislation from three perspectives: basic idea of acknowledgement, main procedure of acknowledgement and creation of norms therefor. As for basic idea of acknowledgement, this paper holds that, unlike tradition legislation idea, split-off of interest is the background of acknowledgement of interest of economic law, public choice is the procedure of such acknowledgement, and game among groups is the core of acknowledgement. On main procedure of acknowledgement of interest of economic law, its inner logic follows the route from recognition to choice, then integration and gradually expression of interest In detail, besides common issues, the expression of interest from interest groups shall be given great attention at the stage of recognition of interest; at the stage of choice of interest, three standards shall be adopted that specific requirement of civilization shall be met; interests shall not beyond the protection scope of economic law; and balance shall be achieved when interests are chosen; methods of assessment of value, exchange of interest and proportional analysis shall be adopted at the stage of integration of interest; at the stage of expression of interest, attention shall be given to the fact that expression of interest of economic law falls into the mode of " symbol-object" and the legal language of economic law is usually derived from daily language. As for creation of norms for acknowledgement of interest, the fact that "creation of subject of economic law" reflects characteristics of "from contract to identity"; the structure of "right -obligation" of economic law features imbalance; and the "regulation of legal responsibility " also has many characters different from those of traditional branch laws reflects the attitude of legislation to distribution of interestChapter Six, "Realization of Interest of Economic Law: Multipartite Participation", as the second part of methodology in theory of interest and economic law, researches how to realize interest of economic law, in other words, which means shall be adopted to transform interest of economic law regulated from legal documents to real world. This paper holds that the traditional way of economic law to realize interest is administrative enforcement of law, which is a "order-obedience" mode featuring leading role of administration, enforceability and unilateral act, and encountered difficulties in the circumstances that interests have been split off nowadays and interference means of state features marketability. Economic law, therefore, shall adopt the mode of "multipartite participation" in which multiple parties realize interests through negotiation. Such mode is a structure with characteristics of openness and multi-level, which allows different interest subjects to participate and express their claims for interest From the perspective of the subject who realizes interest, interest may be realized by government, the forth sector, trade union, enterprise and individual instead of only by administration subject As for the way to realize interest, negotiation and game has become important access to interest. Compared with its role in traditional branch laws, policy is such an important means to realization of interest of economic law that it plays a key role in the running of multipartite participation mode.Chapter Seven, "Protection of Interest of Economic Law: Legal Argumentation", as the third part of methodology in theory of interest and economic law, researches how to protect interest of economic law in procedure of judicial safeguard in case of conflict thereof. This chapter holds that the newest research result of legal methodology—legal argumentation shall be introduced to reconstruct the mechanism of protection of interest of economic law for traditional theory of balance of interest has defect unable to overcome. This chapter points out that it is the change of legal methodology in direction from reasoning by formal logic to hermeneutics that pushes rapid development of legal argumentation as a legal method of hermeneutics, which is significant for protection of interest of economic law. Therefore, the mechanism of protection of interest of economic law, according to theory of legal argumentation, has an outlook different from that of traditional judicial procedure. Such mechanism makes protection of interest an open system, in which, subject of interest protection is not the judge only but multiple parties; the result of interest protection is subject to acceptability of the solution by audience instead of correctness of one answer, reasoning of interest protection does not conducted only through formal logic but substantive legal reasoning, including interpretation of law, economic analysis, analysis of social result and analysis of policy; and protection of interest must be in compliance with strict procedure, which refers not to the litigation procedure in broad sense but to a procedure of legal proof in narrow sense as a result of reference to the proof rules of Robert Alexy.
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