权利倾斜性配置研究

On the Favorable Allocation of Legal Rights

中国的公权机构近年来基于保护弱势群体的考虑,往往通过权利倾斜性配置方式对交易一方的私权进行额外规制或过度保护,但却带来不少负面后果。而这多源于公权机构对自身能力的过度自信以及对私权主体行为复杂性的认识不足。本文认为公权机构只有在考虑到交易双方特定情形下的利益关联度、利益受损者的对策行为、受益人及潜在受益人的道德风险、对特定行业的影响、干预者的能力限度与干预困境等因素时,才能作出正确的权利倾斜性配置决策。

In order to protect the rights of marginal social groups or communities, in recent years, lawmakers have often provided a particular party or parties with extra regulations or excessive protections in a manner which may be named favorable allocation of legal rights(FALR). However, this may have many negative social consequences. The practice derives mainly from the over-confidence of the lawmaking process, and its lack of knowledge about the complexity of behavior of legally-defined private rights. Lawmaking organs, as this study suggests, cannot make correct judgments and decisions on FALR, unless the conditioned interest correlations among parties involved, the possible countermeasure of the interest-aggrieved, the moral hazard of beneficiaries or potential beneficiaries, the consequential impacts on particular industries or professions, and the feasibilities of law enforcement are all fully understood.