论经济法的理论基础

任何法部门都要有理论基础。经济法理论基础应当以讲求法意理论、突出经济法特征和承认其他部门法理论基础为立论之本,并从经济法价值层面推衍出来。以往学界关于经济法理论基础的研究还没能够符合这些条件,故诸说成立的根据不充分;而民商法、行政法、社会法等理论基础对于从经济法价值层面推衍的"整体经济效益"的价值取向及覆盖的法内容,又无力支撑。于是,寻找经济法自身的根本理论支撑就十分关键了。笔者研究发现,经济法为了实现"整体经济效益"的价值取向,必须不断解决个体性经营无序带来的"整体"损害问题,于是,经济法配置的整体性经济权应当是限定个体性经营权的职权。笔者将这一理论称为"限权论"并定位为经济法理论基础。这一理论也是在与民商法的"保权论"、行政法的"控权论"、社会法的"扶权论"等理论基础的界分和协调中形成的。

The Eheoretical Basis of Economic Law

The theoretical basis is required in any divisions of law.As far as Economic Law concerned,it is essential to involve the legal-meaning theory,characters of this law as well as basic theories from other law departments,without departing from the value of Economic Law.In this regard,previous research results about theoretical basis of Economic Law should fail for lack of such conditions,so the foundations of these research are not enough.If referring to other law departments such as Civil and Commercial Law,Administrative Law and Social Law etc,there is definitely no room to apply their basic theories to explain what "integrated economic benefit" means in the legal region,which is deducted from the value of Economic Law.Therefore,it is essential to find the fundamental theoretical support to economic law.The author found that,in order to realize the value of "integrated economic benefit",the problems of "integrated" damage by disorder resulting from individual operations should be solved continually.So,under Economic Law,the integrated economic rights should restrict the individual operation rights.The author names this theory as "the theory of limited power",which should be the theoretical basis for Economic Law.This theory is posed in the course of distinction and harmony about the theoretical basis: "protecting right theory" in Civil and Commercial Law,"controlling power theory" in Administrative Law and "supporting right theory" in Social Law etc.