社会基准法的本质、特征及其实施机制

The Essence, Characteristics and Implement Mechanism of the Social Standard Law

社会基准法是社会法的核心机制,是国家运用公法的法定和强制手段,对所有权、契约自由、意思自治等传统私法权利予以适当限制,直接由法律规定以往由各方约定的部分内容,使弱者的权利从私有部门转移到公共部门,以实现这部分权利的法定化和基准化。其主要特征是,不排除私法任意性规范的作用,以义务规范体现权利,向社会弱者适度倾斜。社会基准法的实施需要国家积极作为,在法律责任上实行赔偿与惩罚相结合的制度,而且诉讼和赔偿受到一定限制。

Social benchmark law is the core mechanism of social law. It aims to appropriately restrict such traditional rights of the private law as the rights of ownership, freedom of contract and autonomy of will by the state through legal means and compulsory means of the public law, so as to legalize some rights which were previously agreed upon by various parties, and shift the rights of the weak from the private sector to the public sector to realize the legalization and standardization of this part of rights. Its main characteristic is that it does not exclude the role of the arbitrary norms of the private law, but embodies rights through obligation norms, and gives preferences moderately to the weak of the society. Its implementation needs the active act of the state. On legal responsibility, it carries out the system of combining compensation and punishment, with litigation and compensation restricted to some extent. Social standard law overcomes the limitation that the poor are weak in trading ability, and their interests are often deprived of by civil law "autonomy", so as to save a large number of individual transaction cost and social cost of justice, change the unbalanced state of strength between the main force and the weak, and protect the most basic interests of the weak.