Social Sciences in China (Chinese Edition)

No. 9, 2023

 

The Levels of Distribution in Private Law

(Abstract)

 

Xie Hongfei

 

Considered the theory of three distributions (primary, secondary and tertiary) in economics, the intrinsic level of distribution of private law is 2.5. Primary distribution gives all private subjects equal objective rights, and they can obtain subjective rights through factual and legal acts. The legal environment should be conducive to unleashing legal entities’ energy and creativity, supporting entrepreneurs, safeguarding the neutrality of competition, and promoting the mobility of production factors, so as to consolidate the material foundation for common prosperity. Redistribution changes the rules of primary distribution and is an inherent and proper function of private law. In balancing the strengths and weaknesses in the interactions of private subjects, it is better able to promote entities’ self-determination and safeguard the dignity of the human person than are the redistributive methods of public law. Moreover, it enables private law to achieve the national goal of enhancing social welfare and reducing confrontation in the operation of power. Private law’s distribution level of 2.5 falls between secondary and tertiary distribution, most typically in sacrificial liability, and including the expansion of the social liability of profit-making legal persons, the expansion of tort liability, and the limitation of the return of benefits. Distributive justice can serve as a common basis for the various levels of distribution in private law, incorporating the different values of private law and weighting them differently depending on the circumstances, and can help to transform all the rules of private law into laws of nature, thus giving greater prominence to the neutrality of private law.