经济法强、弱势主体限制与保护模式探析

Analysis on Restriction and Protection Model of Advantaged or disadvantaged Subject of Economic Law

经济法危机首先表现为理论危机,而后是实施危机,进而产生信任危机。经济法强、弱势主体限制与保护模式,强、弱势主体的实质是其逻辑起点,它来源于但又高于传统的权利与义务模式。通过采用同等的限制与保护、限制、保护、限制兼保护、保护兼限制五种不同的方式,对强、弱势不平等主体进行同等或不同等的限制与保护,其核心是充分发挥市场机制的决定作用。模式的建立,有助于反思民法滥用及其遏制,助推民法转型升级,结束在全面依法治国背景下经济领域民法滥用和"无法可依"的混乱局面。同时,通过揭示经济法本质,化解经济法危机,以期发挥经济法的真正作用,引领经济法正确的发展方向。

The crisis of the economic law is the theoretical crisis firstly, and then the crisis of implementation, and the crisis of confidence finally. The restriction and protection model of advantaged or disadvantaged subject of economic law, which the essence of advantaged or disadvantaged subject is the logical starting point, originates from but is higher than the traditional right and duty model. By the use of five different ways that are restriction and protection equally, restriction, protection, restriction with subsidiary protection, protection with subsidiary restriction, the model enforces equal or unequal restriction and protection of the advantaged or disadvantaged unequal subject, and the core of the model is to give full play to the decisive role of the market mechanism. Establishment of model helps us to introspect the civil law and to curb the abuse of the civil law, boosts the transformation and up- gradies of the civil law, and puts an end to the chaos that the civil law is abused and no law can be abided by in the economic field under the background of comprehensive rule of law. At the same time, revealing the nature of eco- nomic law and resolving the crisis of economic law help to play the real role of economic law,lead the correct direc- tion of economic law.