Dilemma and Solution for Relief in the Right to Equal Employment-From the Perspective of Rectifying Private Law with Social Law

At present,the legal remedies in terms of the right to equal employment in China are mainly related to private law,that is,laborers seek direct legal remedies for personality rights liability and infringement liability according to typical private law,supplemented by indirect remedies for labor contract liability under special private law.However,there are many challenges in private law remedies for the right to equal employment,which are manifested in the misunderstanding of the general tort identification of employment discrimination,the loopholes in the regulations on discriminatory employment,the imbalance in the burden of proof,and the limitation and alienation of the functions of civil liability and private law autonomy.The root of those problems lies in the fact that the nature of anti-employment discrimination law is not private law but social law.Equal employment involves both public and private interests,and it should be based on the public interest of society and adhere to the value orientation of prioritizing fairness while taking into account efficiency.Improving the legal relief mechanism for protecting the right to equal employment,with a focus on correcting private law with social law,is the solution to the dilemma.Specific measures include establishing the special tort liability system for equal employment,the legal mechanism against discriminatory labor contracts,the public-private integrated legal responsibility system,and an essentially fair system for the responsibility of adducing evidence.

“Fundamental Rights and Private Law” in China

The Qi Yuling case is a crucial juncture in the study of “fundamental rights and private law” in China, yet relevant research is underpinned on two clues. The first is that the increasing interest in the “constitutionalization of private law” worldwide provides knowledge resources and reference materials for scholars in China;the second is the understanding and exploration of the judicial application of the Constitution since the 1980s. Among them, such concepts as “the Constitution has direct legal effect” and “the Constitution needs to be implemented by the people” could have directly affected the Qi Yuling case. Focusing on such topics as the case of Qi Yuling, judicial enforcement of the Constitution, and the compilation of the Civil Code, scholars discussed the ways and scope for inclu ding fundamental rights in private law based on their experience abroad. They also looked into specific issues, covering how fundamental rights affect civil acts and the private law effects fundamental rights like personality rights, equali ty rights, freedom of speech, and protection of personal information. In the context of promoting the full implementation of the Constitution in the new era, “fundamental rights and private law” is still a field with great potential in both practice and theory.

Landmark Law Provides Equal Safeguards to Public,Private Property

Atier more than a quarter-century of market-oriented economic policies and unprecedented economic growths, China on March 15, 2007enacted its first law that provides equal legal safeguards to both public and private properties. The 247-article People＇s Republic of China Property Law, which is due to come into effect as of October 1, 2007, stipulates that ＂the property of the State, the collecfive, the individual and other obligees shall be protected by law, and no units or individuals may infringe upon it＂.

The Hierarchy of Distribution in Private Law

In terms of the theory of the three hierarchies of distribution in economics,private law can be seen as embodying a 2.5th distribution.Primary distribution confers equal objective rights on all private agents,who acquire subjective rights through de facto and de jure acts.The legal environment should be conducive to unleashing the energy and creativity of agents,supporting entrepreneurs,safeguarding competitive neutrality and promoting the mobility of factors of production in order to consolidate the material foundation of common prosperity.Redistribution changes the rules of primary distribution and is an inherent and rightful function of private law.By equalizing the strengths and weaknesses of the interactions of private agents,redistribution is better able to promote self-determination and defend human dignity than public law.Moreover,it enables private law to achieve the national goals of enhancing social welfare and reducing confrontation in the operation of power.Private law lies between redistribution and tertiary distribution,occupying the 2.5th distribution.Its most typical expression is"interference liability,"i.e.,justified harm inflicted in cases of necessity(Aufopferungshaftung).This includes the expansion of the social liability of profitmaking legal persons,the expansion of tort liability,and the limitation of the return of benefits.Private law enables distributive justice to serve as a common basis for the various hierarchies of distribution,incorporating the different values of private law and weighting them differently depending on the circumstances.Distributive justice can also help to transform all private law rules into laws of nature,thus highlighting the neutrality of private law.

Opportunities and Challenges for Private Education in China: A Review of the Latest Policy Revisions

Purpose:This study reviews the latest revisions to“lmplementation Regulations of the Private Education Promotion Law of the People's Republic of China.”In doing so,this study provides a comprehensive overview of the policy and its history,as well as the future outlook of private education in China.Design/Approach/Methods:Data were collected from the official website of the Ministry of Education of China as well as the media.Findings:This study identifes the background,rationale,major breakthroughs,and impacts of the revised policy.Originality/Value:This study provides a comprehensive analysis of the latest revisions to"Implementation Regulations of the Private Education Promotion Law of the People's Republic of China."In addition to an academic interpretation of these policy changes,it suggests how private education in China may develop.

A Historical Perspective on the Unification of Private Law and the Future of the Civil Code

China has a long tradition of legal codification. In looking at the unification of private law, we need to follow three historical threads： the historicity of law, the rationality of private law and the rules governing the growth of private rights. Following on from and amending the Draft Civil Law of 2002, we can use restorative methods to formulate a nine-part civil code suited to China＇s national circumstances. The nine parts comprise the General Principles of Civil Law; Marriage and Family Law; the Law of Succession; Real Rights Law; Intellectual Property Law; Contract Law; Employment Contract Law; Tort Liability Law; and the Law of the Application of Law for Foreign-related Civil Relations. With this goal in mind, we can adopt a four-step legislative process： firstly, integrate the Marriage Law and the Adoption Law to form a unified Marriage and Family Law; secondly, include Employment Contract Law as a separate section of the civil code; thirdly, include Intellectual Property Rights Law as a separate section of the civil code; and fourthly, amend the General Principles of Civil Law so as to integrate Personal Rights, the General Principles of Property Rights （the General Principles of Obligation）, the General Principles of Commercial Law, etc. The civil code formed on this basis possesses historicity, flexibility and contemporaneity, and would become an important constituent in the restatement of Chinese civil life and the remolding of the Chinese system of law.

Norms of legality in relation to the validity of juristic acts (rechtsgesch(?)ft):the influence of public law on the effect of juristic acts and its limitations

It is a common principle in all countries that juristic acts that violate jus cogens are invalid. This may be termed ＂norms of legality＂ in relation to the effect of juristic acts （Rechtsgeschaft）. This refers only to jus cogens in public law, since jus cogens in private law is self-governing or autonomous in nature and its violation results at worst in ineffectiveness rather than invalidity. In determining whether legal acts that contravene public law are valid, the objectives of the related public laws must be examined and the principle of proportionality applied to limit the interpretation of the objectives of the public law in question, in order to further distinguish obligations in public law from those in private law. Local laws and administrative rules cannot be excluded completely in the application of civil law. Violation of the law and violation of public order and good custom have totally different effects and cannot be treated as the same thing.