The Relationship Between Legal Departments And Legal Concepts In Social Law Research

< p > remove some sentimental words from the surface. The reason why "generalized social law" is criticized is that its "legal concept" is not compatible with the expression of the official "legal department". This is also the most direct motivation of many social law researchers claiming to uphold the "Zhongyi social law".

In the early 1990s, Mr. Xie Pengcheng proposed the structure of the class law.

2, when the "broad social law" is used to study the social jurisdictions in this category structure, there will be double structure between the law department and the law area.

In the eyes of Mr. Feng, social law can only be a legal department, but not a legal domain. He called the "broad social law" as "the law society law", and made a "avoidance of the standard of understanding the legal system and dividing the legal categories", aiming to disrupt the criticism of the "legal department" or "departmental law" traditional legal system cognitive framework and basic legal consensus.

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< p > < strong > (1) a href= "http://www.91se91.com/news/index_c.asp" in "Feng's expression", legal department < /a > and legal category < /strong > /p >

< p > for the social law, the classical expression of Mr. Feng's own teaching material is: "modern labor law has dual attributes of public law and private law, and is different from public law and private law, belonging to the category of social law."

4 in order to facilitate writing, we call this expression "Feng Shi's expression".

"Labor law belongs to the social law" itself indicates that the labor law is a subordinate concept and a concept. Social law is a concept of upper concept and a concept. Labor law is enacted by social law.

Mr. Feng clearly pointed out that the labor law, as a subordinate concept and a concept, is an independent legal department. If the social law in Feng's expression is also called the legal department, there must be at least a narrow sense of law department and a broad legal department. The broad sense legal department is a concept of the jurisdictions. "Feng's expression" is also a proposition of "the law of social law".

This conclusion can also be confirmed from other expressions of Feng, which is in line with the "labor law belongs to the social law". The formulation is "civil law and commercial law as private law". In the 5 language, "civil law and commercial law" is a synonym that can be exchanged with "private law". Civil law is the law department, private law is the law area, and "civil law" is contained in "private law".

When introducing the independent status of labor law, Mr. Feng compares it with civil law, the title is "labor law and civil law". 6, this is a comparison between legal departments. When Feng introduced his "social law", he compared the "social law" with private law and public law, which is a comparison between jurisdictions.

After comparing the two groups, the conclusion that labor law is different from public law and private law belongs to the category of social law.

The expression of "dual nature of public law and private law" and "different from public law and private law, belonging to the category of social law" is a typical expression of "generalized social law", and it advocates the third law area to be named "social law".

In my opinion, this statement is not contradictory to the traditional legal system's cognitive framework and basic legal consensus.

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What is the reason why Mr. Feng corrected his original logic and criticized the "Law Society Law" including "Feng Shi"? The answer is "P".

"The legislature will associate the social law with other relevant legal departments such as the Constitution and the constitution, the civil law, the administrative law, the economic law, the criminal law, the litigation and the non litigious procedure law. It is obvious that it is treated as a legal department. Otherwise, it will become a side by side between the" legal department "and the" legal domain ", which is against logic.

7, is it not logical for officials to say that social law is a legal department? In Feng's statement, the constitution, administrative law and criminal law are legal departments, while public law is the "legal domain"; civil law and commercial law are the same as private laws and are "legal areas".

8 in the seven point law of the state, the NPC has already interpreted it as the constitution, administrative law and criminal law of the legal department, which are parallel to the private law (civil law and Commercial Law), which is understood as "legal domain".

It can be seen that no matter whether the social law is understood as a legal department or a legal domain, it seems that the allegation of "violation of logic" can not be changed.

In fact, the government also has its own considerations, did not enter the logic set by Mr. Feng.

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< p > < strong > (two) the legal departments and legal categories of domestic legislation are < /strong > /p >

< p > the expression of the National People's Congress on the legal departments and legal categories is: "the basic symbol of the socialist legal system with Chinese characteristics is"; first, the legal departments (or legal categories) covering all aspects should be complete.

9 some scholars who advocate "Zhongyi social law" think that the contents of "legal category" in brackets can be omitted. Therefore, by criticizing the concept of "broad social law", including "Feng's expression", the concept of social law should be applied in the same sense.

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< p > in fact, the official "covering all aspects of the legal department (or legal category)" itself indicates that the legal department's formulation is flexible, some are the meaning of narrow sense legal departments, and some should be interpreted as the broad legal departments (also called generalized legal categories), which is another way to express the legal domain.

Combined with the specific contents listed by the government, such as the constitution, administrative law and criminal law are the meanings of the traditional narrow legal departments; civil and commercial law, economic law, social law and procedural law have the characteristics of broad legal categories, which contain some narrow legal departments with unique adjustment objects.

In this sense, the broad sense of law is an explanatory concept, which is not exactly the same as the actual meaning of narrow sense legal departments. In a specific context, narrow legal departments can be juxtaposed with the broad categories of laws.

And how to arrange them is based on the importance of each legal department or legal category. The NPC pays more attention to content rather than surface form. In subsequent arguments, we will explain the theoretical and practical significance of this arrangement.

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< p > when there are differences in the attributes between the "a href=" http://www.91se91.com/news/index_c.asp "> the legal department < /a > and the broad legal categories, there will inevitably be two kinds of research methods. Civil law and commercial law have their own adjustment objects as narrow legal departments. 11 when they are bundled into a broad legal category, they should have a common guiding ideology, and the concept of private law is obviously the basis for them to be bundled into legal categories.

Similarly, social law should have a unified reason as a broad legal category.

Taking labor law and social security law as an example, as the two independent narrow legal departments, the difference between them is greater than that between civil law and commercial law.

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< p > < strong > (three) abroad, < a href= > http://www.91se91.com/news/index_c.asp > > legislation < /a > the legal departments and legal categories are < /strong > /p >

< p > Social Law in many countries exists in the form of narrow code and generalized law group. The difference lies in only naming the former or the latter as "social law". For example, Germany is more willing to call the social security law a "social law", while Japan calls it a social law including social security law, labor law and economic law.

The two are not contradictory but complementary.

The theoretical value of the "generalized social law" in China can also be seen from two perspectives: the narrow sense code and the generalized law group.

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< p > from the perspective of narrow sense code, the legal department is a general name for regulating legal norms of certain types of social relations by means of special adjustment.

The legal department is not a universal concept. As a real system design, it is a codified institutional arrangement in foreign countries.

When regulating social relations in a similar way of adjustment, the social relations required to be adjusted have the same or similar nature, and the scope is generally relatively narrow, otherwise the system design will lose pertinence.

From the perspective of the development trend of all countries in the world, the "legal department" should be narrowed, and a unique adjustment object and adjustment method should become a legal department.

France divides the social security law from the labor law into two codes, which provides an example for us.

Only narrow sense can reflect the stability of legal norms.

China's official definition of social law includes labor law, social security law, special group protection law, social group law and other narrow legal departments.

Strictly speaking, what the government calls "social law" is a concept of legal group. The social law defined by the government is the purpose of solving social problems. It has the nature of "broad social law" and is more suitable for understanding the principle of "generalized social law".

As a kind of departmental law with the characteristics of legal category, social law is bound to form a two-tier principle structure of narrow legal departments and broad legal categories.

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On the surface of P, the generalized social law takes the broad sense of law as its research object. Scholars who call themselves "social justice in the middle sense" criticize the principle of narrow legal departments, thus forming the current discussion.

If we do further thinking, the author also knows Mr. Feng's understanding of the "legal consensus" after he has seen Mr. Feng's article, and has changed his critical attitude towards "Feng's expression". This situation also appears in Mr. Zheng Shangyuan's article.

12 what is the logic behind the sudden changes in scholars' viewpoints?

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