论要素产权保护的法律需求与供给

On the Legal Demand and Supply of Factor Property Right Protection

保护要素产权,推进要素市场化配置对法律提出了更高的要求。要素市场具有不同于产品市场的三个特征:派生性、嵌入性和博弈性。派生性使得要素的法律产权和经济产权出现落差,嵌入性使得要素的市场化程度受到政治系统和社会系统的规制,因此要素的市场化配置需要协同配套改革。要素产权的博弈性不仅体现在要素产权主体之间的博弈,而且公权力也是要素市场上的博弈主体,因此要素产权需要保障私权、规范公权的私法和公法的二元保护。宪法中的经济性基本权利可称之为经济宪法,是规范市场主体和公权力之间关系的重要规范。经济性基本权利包括防御功能和客观价值功能,防御功能体现为要素产权主体防范公权力不当干预的主观权力,客观价值功能确立了公权力行使的范围、程序和限度。

The protection of factor property rights and the promotion of market-based factor allocation have higher requirements for laws.The factor market is distinct from the product market by its three features:derivativness,embeddedness and game properties.Derivation leads to the gap between factors’legal property right and their economic property right,while embeddedness makes their marketization degree regulated by political system and social system.Therefore,market-oriented factor allocation demands a coordinated reform.As the game between property rights is reflected in the game between their subjects,and public power is one of the game subjects in the factor market,factor property right needs dual protection from public and private laws that secure private rights and standardize public rights.Basic economic rights in China’s constitution can be called economic constitution,which serve as an important criterion to regulate the relationship between market subjects and public power.They include defense function and objective value function.The former is embodied in the subjective power endowed to the subjects of factor property right to avert the improper intervention of public power,whereas the latter establishes the scope,procedure and limit of the exercise of public power.