经济法的观念基础与规则构成——对“需要国家干预论”的反思与拓展

The Foundation of Economic Law Ideas and Formation of Principles:Reconsideration and Evolution of the "Theory of National Intervention"

作为经济法的重要学说之一的“需要国家干预论”,因其影响大,而争论和分歧也多,分歧的焦点在于对“谁之‘需要’”与“‘干预’什么”存在不同理解。对此问题,按整体主义理解,国家干预是社会基于整体经济发展的“需要”,这意味着“需要”的主体是社会,干预的内容是具有全局性和社会公共性经济关系。正因“需要”的主体是社会,就防止了国家干预的恣意性,同时,社会整体利益因有国家代表而得以保障,从而彰显了经济法的社会本位属性。另外,社会的“需要”决定了经济法的目的,目的作为指针指出了经济主体的行为准则,同时,整体构造的复杂性预示了经济法技术规范的复杂性与多样性。

Being one of the most important doctrines in economic law, ＂the necessity of state intervention＂ arouses much controversy while acquiring great influence. People mainly disagree upon ＂what should be intervened＂ and ＂who needs state intervention. ＂ From the angle of organicism, state intervention originates from society＇s demand for an overall development of economy, which means that it is the society that has ＂needs,＂ and it is the overall and public economic relationship that ＂should be intervened. ＂ The fact that it is society that has ＂needs＂ proves that there is no room for arbitrary state intervention. At the same time, social interests are safeguarded by the state that acts in the name of society and thus economic law reveals its features of social standard. Further, it is society＇ s demand that determines the goal of economic law, while the goal as a guide frames the code of conduct for economic entities. Meanwhile, the complexity of the organic system indicates the complexity and diversity of the technical norms of economic law.