Social Sciences in China, 2024

Vol. 45, No. 2, 2024

 

The Hierarchy of Distribution in Private Law

(Abstract)

 

Xie Hongfei

 

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 profit- making 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.

 

Keywords: private law, primary distribution, redistribution, distributive justice, corrective justice, liability for justified harm inflicted in cases of necessity