Discussion On The Application Of Public Policies In Civil And Commercial Legal Practices In China

Whether public policies can be applied in judicial adjudication is a quite controversial issue in both legal theories and judicial practices. This paper conducts a general study on the application of public policies in civil and commercial legal practices and tries to roughly show the specific application of public policies in civil and commercial legal practices, so as to deeper and broaden the study of this issue and to finally serve judicial practice.This paper is composed of five chapters, respectively discussing the concept of public policies, the relationship between public policies and the law, the application of public policies in the civil and commercial legal practices in China, the ways and the necessary restriction on such application, and etc.Chapter I analyzes and summarizes the general concept of public policies and its concept in law, and indicates that, compared with the general concept of public policies, the concept of public policies in law is generally further defined in its connotation as"being related to the law or acting as legal rules to some extent", which means that public policies unrelated to the law, such as individual political policies and diplomatic polices do not fall into the scope of public polices in law, and as"not having been integrated into the law". Otherwise, the boundary between public policies and the law may be confused.Chapter II conducts detailed analysis and elaboration on the relationship between public policies and the law from three perspectives including the general relationship between public policies and the law and the theoretical controversy on and the practice of their relationship. From the perspective of the general relationship between public policies and the law, this paper indicates that, public policies and the law, as two social regulations and two ways of social adjustment, respectively perform their functions and play irreplaceable roles, and overviews the differences and relations between them. From the perspective of theoretical controversy on the relationship between public policies and the law, ideas of major western schools of law including the analytical law school, sociological law school, natural law school, economic analysis law school and political law school are introduced and viewpoints of scholars in China are summarized. With respect to the practice of the relationship between public policies and the law, this paper elaborates the role that public policies play in legal practice from the perspective of the effective provisions of laws, and indicates that the authority of law and jurisdiction is a kind of authority upon recognition. Without universal social recognition, the authority of law and jurisdiction is nothing but the image of legal practitioners. To maintain consistency with public policies in judicial adjudication is the inherent demand of the jurisdiction to make progress together with of the time and to be recognized by the society.Chapter III gives an insight into the role that the public policies play in the civil and commercial legal practices in China. Firstly, public policies serve as important standards of judicial interpretation. Laws could not be applied unless being interpreted. Purpose-oriented legal interpretation and reasoning is an important standard for interpreting laws. The law has subjective and objective purposes, while public policies, as the demonstration of public interests, may be used as standards for identifying objective purposes. In this paper, the author supports this viewpoint by analyzing the influence of the public policies regarding the restructuring of enterprise on the judicial interpretation of Supreme People's Court on the Rules on Issues Concerning the Hearing of Civil Cases Related to the Restructuring of Enterprise. Secondly, they serve as important factor for filling up loopholes of the laws. A perfect act has been the dream of legal practitioners which has never come true. Areas where laws are silent can be filled up by the implementation of public policies. By analyzing the case on the sales of country house that happened in the"Artist Village", Song Zhuang in Tongzhou District of Beijing, the author elaborates on how a legal loophole is filled up by public policies. Thirdly, they serve as the important basis for the fixable application of law. Under certain social conditions, sometimes public policies need be used to adapt the application of law in an attempt to satisfy the needs of the state and maintain the stability of the society, which is illustrated by the author by analyzing the functions of public policies in the admissibility of the bankruptcy application of state-owned enterprises and in the disposal and allocation of the assets of bankrupt enterprises.Chapter IV studies the ways that public policies are applied in the civil and commercial legal practices in China. In the civil and commercial legal practices, the functions of public policies are different in cases the modes how public policies work are slightly different. In filling up loopholes of laws and for flexible application of laws, public policies serve as a formal source of law and may be directly used as the legal basis of adjudication. As a standard of judicial interpretation, public policies act as an informal source of law and enter the judicial adjudication mainly by two means: one by interests of litigation, for deciding whether or not a claim can enter judicial adjudication. The public policies formulated by the government or the ruling party during a certain period and under certain social environment are important standards for deciding whether or not a claim can enter judicial adjudication. Therefore, in the civil and commercial legal practices, public policies become a valve which determines whether or not a claim can enter the judicial adjudication. The other is by public order and good customs, for controlling the effects of legal acts. In fact, the existence of provisions of public policies in civil and commercial laws grants the judges the power to apply public policies in specific civil and commercial cases. During that process, the judges are no longer completely independent judges but legislators who realize some public policies.Chapter V discusses the necessary limitation on the application of public policies in the civil and commercial legal practices in China. There are two means of limitation: one is by measuring the interests of applying the public policies. Firstly, it is necessary to measure the interest in deciding whether to adopt political elements in judicial practices; secondly, since public policies do not have definite premises and legal consequences as laws and regulations do, the measurement of interests must be conducted when applying public policies in judicial course. The other is that legal argumentation must be conducted in applying public policies. Real authority is neither established on enforcement power, nor under sanction, but is reasonable authority based on argumentation. In the civil and commercial legal practices, no matter a public policy is applied for filling up loopholes of the laws or for interpreting laws, it shall not be taken for granted but must be upon legal argumentation, that is, to specify the justification of the application of the public policy in civil and commercial legal practices. Justification involves two levels, legitimacy and rationality. Legitimacy, as the superficial requirement of justification, is a pro forma justice, while rationality, as the deeper requirement of justification, falls into the scope of substantive justice. The legal effect directly perceived from adjudication comes from legitimacy, but in fact is decided by rationality of the adjudication. Therefore, the application of public policies shall satisfy the requirements on both legitimacy and rationality.The conclusion at the end of the paper briefly summarizes the research of this paper.