Public law mainly refers to the adjustment of the relationship between the state and ordinary citizens, organizations, as well as the relationship between state organs and their memberslawPrivate law is mainly the law regulating the relationship between ordinary citizens and organizations.Public law and private law are the common laws of civil lawclassification method 。In recent years, in China's legal circle,public lawAnd private law has also become the way to divide Chinese law.There are different opinions about the standard of classification.Ancient RomejuristUrbianSaid that "public law is about the laws of Roman countries, and private law is aboutpersonal interests"[1]
The division of public law and private law was first made byAncient RomeProposed by jurists.according toUrbianPublic law is a law aimed at protecting national (public) interests, while private law is a law aimed at protectingprivate interestLaw for Purpose.
Continental law systemIt is generally believed that public law regulates the state orpublic interestThe subject of one party should be the state, and the subject of the other party is generally an unequal subordination or obedience relationship, which is denied by public lawAutonomy of private law, withMandatory normsMainly.And the private law emphasizes the privateInterestsThe legal norms ofArbitrary specificationMost of them carry forward the autonomy of private law and take autonomy as their highest principle and essence.Public law and private law are within the scope of adjustment,adjustment mechanism There are essential differences between them and the interests they protect.The biggest difference between public law and private law lies in their different legislative ideas: public law compels obedience and pays attention to the operation of power;Private law focuses on consciousness autonomy, equality and equivalence, and the form and protection of rights.
The distinction between public law and private law, as the German scholar Kirk said: "The difference between public law and private law is today's entirelegal orderThe foundation of ".
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First, public law is to allocate and adjustpublic rightsLaw of.Public power is the focus of public law.All public powers in the practical sense need to be allocated by the public law in the practical sense.
Secondly, the scope of public law includes the public law that allocates the relationship between public power andPrivate rightsPublic law of relationships.Public law can be extended to the level of interference with private rights, not justState powerLevel.The boundary of public power is the area where individuals may have conflicts.Of course, this is strictly speaking, because any power belongs to the people, and the people have the right (rights and powers) to form a common and consistent will through certain procedures and channels, which is materialized into various state organs（Authority、Executive organ, judicial organ, armed organ, etc.), then the coexistence of public power and private rights has formed, and both can influence the other party through legal procedures.In other words, there is no private right not subject to the jurisdiction of public power, nor public power not affected by private rights.The ultimate reason or motivation of the two impacts should be the needs of people's interests and happiness.
Thirdly, public law allocates and adjusts public powerlegal normThe sum of.These norms are different in terms of specific objects, objects, methods, etcLegal department, even extremely scattered.
Fourth, princess body, public interest, public powerPublic rightsAll public categories should be adjusted by public power, and naturally by public law.Generally speaking, everyone (public domain) is governed by public law;Personal (private domain) matters are governed by private law.
Fifth, the scope of adjustment of public law is dynamic and changes with the development of society.The more the society develops, the higher the degree of socialization, and the more the public power develops.However, this is not contradictory to the protection of people's private rights.On the other hand, while the public power is expanding, the private rights are also expanding, and the two complement each other.Without the expansion of private rights, public power will have no soil.feudal societyThe same is true of the public power and private rights of.
Sixth, public law is not a singleSectoral lawThe purpose of studying public law is to standardize public power. Therefore, when defining public law, we should take public category as the clue and reference, and public power is the core of public category. Therefore, public law should start from public power.
Seventh, public law is law, and its norms are legal norms, with a complete logical structure.Therefore, the public law haslegal consequence, mainly for sanctions, but also for compensation.Public law is mainly composed of four parts: (1) public power.The origin, formation, and classification of public power (state power and social public power).The division and interrelation of state power, the horizontal and vertical allocation, the allocation of state power and social public power, and the allocation and relationship between public power and private rights.（3） Public law relationship.It refers to the relationship of rights and obligations formed by public power in the process of adjusting social relations.（4） Public law liability.It refers to the behavior that endangers the legitimate exercise of public power and violates the public law and should be punished.
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The division of public law and private law is dynamic and historical, and is the result of economic, political and other factors.At present, the public power of society tends to expand, and the state needs to authorize the society more and more, which leads to the so-called“Social law”。In essence, they belong to the category of public law and should be included in the scope of public law.
