论法治社会私法的非优位性——对公、私法定位的再反思

On Non-priority of Private Law in Rule-of-law Society

本文通过对私法优位论进行追根溯源的探讨 ,发现它在价值理念、法律内容和法律形式等诸方面都存在着根本缺陷 ,是受近代市场经济和个人自由主义观的影响所产生的。在法治化进程中 ,私法优位与法治秩序所要求的权力制约、法律权威、司法正义、行政法治和人权保障都格格不入。本文在否定私法优位论的基础上 ,提出法治社会应当奉行公法优位的观念。

Tracing to its source, this article probes into the theory of priority of private law, finding that it has some basic defects in such aspects as the concept of value?contents of law?forms of law,etc, which have resulted from the influences of the market economy and individualism in recent times.In the process of the rulization of law, the theory of priority of private law is incompatible with power restriction?law authority?judicial justice?administrative rule of law and ensurance of human rights, which are demanded by rule of law society. On the basis of negating the theory of priority of private law,this article puts forward that rule of law society should pursue the theory of priority of public law.