Behind the legal relationship is the identity relationship and property relationship between people. The five major wealth rights series articles (see "The Property Rights of the Five Wealth Rights: Whether it is the Right of Man to Things or the Rights of Man to Person", etc.) The property rights of the five wealth rights - whether it is the right of people to things or the rights of people to peopleIt has been pointed out that in the modern legal system, there are five kinds of wealth relations between people, namely property rights, creditor's rights, equity, intellectual property rights, and trust beneficiary rights. In terms of substantive rights, these five types are the real or basic substantive rights. If there are other rights, they are only tools for the realization of these five basic substantive rights.
If the basic rights representing wealth relations are violated and fail to be realized, they should go to court and let the coercive power of the state protect the rights. Under such a legal system, it is of little practical significance to distinguish between substantive rights and litigation rights. Of course, this level of legal system is very shallow and can be seen through at a glance. When German jurists complete the creation of the concepts of the right to dominate, the right to claim, the right to defend, and the right to form, and regard these rights as different substantive rights, they will truly realize the dichotomy between substantive rights and litigation rights, and complete the upgrading of the legal system.
The so-called dichotomy means that people's behavior should be directly determined by substantive rights, and has nothing to do with whether there is a court judgment or not. The court's judgment is nothing more than a method of "realizing" substantive rights. If everyone can consciously act according to the results derived from the rules (for example, a chip implanted in the brain that will only act according to the rules), and there is no need for bailiffs to force it, the legal system can function without courts. In this way, when rights and rights are in conflict, the result is a conclusion derived from formal logic and so-called human reason, and based on the rules of law. And where did the legal rules come about?The first is based on the first axiom of liberty and equality. The second is the rules that cannot be deduced but need to be chosen through the legislative process, such as walking on the right. (For details, see the first article of the legal vernacular, "What are rights and obligations--taking freedom and equality as the first axiom of law") What are rights and obligations-taking freedom and equality as the first axiom of law.
Let's take another example to illustrate what substantive rights mean. The right to request is a substantive right, so I can either write to you for money or go to court to sue you for money. In the end, if you want to pay off your debts, you don't necessarily have to go through the procedures of litigation and enforcement, but you can find a lawyer, a chamber of commerce, an arbitrator, and rely on legal theory to analyze and come up with an answer. If my claim is valid, then you can pay it back and you don't have to wait for me to go to court. If you have the right to defend yourself, then my right to claim cannot be exercised for the time being. Similarly, the right of retrospective recognition, the right of set-off, and the right of rescission are also substantive rights. It is characterized by the fact that the legal relationship between the two parties can be changed according to the unilateral expression of intent, and can only be changed without going to the court (except for the revocation of the contract). I posthumously admit it, and the two of us have changed from having no rights and obligations to being related. I issued a notice of set-off, and our previous rights and obligations were extinguished.
The separation of substantive and procedural rights actually codified social life. In other words, the property relations between people and their changes have become legal acts. Then, when doing business, every conversation and every action will have a legal meaning and produce legal consequences. When I send a letter asking for a debt, I am exercising my right to claim and the statute of limitations can be interrupted. I sent a letter asking for an old debt more than three years ago, and if you replied that "I don't want to pay it back after too long", you are exercising your right of defense. If you don't exercise the right to defend and repay the money, you will repay the money in vain, and you can't pat your thigh afterwards and say that you would not pay it back if you knew that you could defend it with a statute of limitations. I owe you a debt that you will have to pay penalty interest if you don't pay it when due, and if I give a timely notice that you still owe me an old debt, you will offset it. Then, I don't have to bear the liability for breach of contract if I don't pay it back when due.
The "benefits" of this "legalization of social life" are obvious. Businessmen can govern themselves based on legal logic and the application of legal rules. You don't have to go to the court, you can just use the lawyers you hire to "reason" and "debate". The court's judgment is also simple, but it is just to add a layer of official coercive force to the content of their respective "reasoning". As for whether you understand the rules of the law or not, and whether you are good at "reasoning" and "debating", it is the matter of the parties themselves, and the judge does not need to provide you with legal knowledge services, and will not be your lawyer for free.
If we understand the "advantages" of "legalizing social life," we will be able to understand the disadvantages. According to the tradition of Chinese society, the exchange of money, food, and trade between people basically does not involve "national law", and daily social life can be carried out by virtue of "human affection and physics". It is much easier to learn this "physics of human feelings" than to learn the rules of law, even for the illiterate who cannot read. For example, I take my train ticket and ask you to remove it from my seat without having to analyze what the basis of my claim is. There is no need to discuss whether the so-called "my seat" is ownership, possession, or whether there is no such thing as "my seat" in law at all. Paying off debts and asking for accounts at the door does not need everyone to talk about the theory of the right to claim and the right to defend. It is really when you encounter a cheater, you need to use national law to deal with it.
This "physical human affection" may not be as elaborate as the Western legal system, but its "institutional cost" is extremely low. There is no need for legal experts, lawyers, judges (ordinary magistrates can also adjudicate cases), and there is no need to study legal theories in an exhaustive manner. In ancient Chinese society, although there was no special civil law and commercial law, there were also developed pawn and loan businesses, the same so-called "shares", and the same Shanxi ticket number with branches all over the country. The ticket number has developed concepts such as "body stock", "silver stock", "east partner" and so on, and can be understood and used by "guys" with a very low level of education. On the contrary, concepts such as the shareholding system, the separation of ownership and management rights, and the capitalization of human resources are still half-understood even after a graduate degree of law without a long period of practical practice.
Is the legalization of social life really a beautiful scene?Bargaining when buying vegetables in the vegetable market, which is an offer, a counter-offer, a promise, and an oral contract. This absurd "legalization" can be ignored. So, can social activities such as ordinary people going to the bank to make deposits, buy insurance, buy houses, and use apps to surf the Internet also be "legalized"?Those contracts that are dozens of pages long, deposit agreements, privacy policies, do the average person need to read them all, and will they actually read them?Should the legal liability of the commercial institution be exempted if the contract clause is bold and blackened, asking the consumer whether he has heard the disclaimer notice clearly and recording it, or even asking the consumer to manually copy the words "I have read the above risk warning" at the end of the contract?
In this way, the "legalization of social life" is nothing more than a delusion. Therefore, the legal terms in the Western legal system will inevitably go to blackening, that is, to detach themselves from the people. Obviously, the more blackened the legal terminology, the more advantageous the wealthy people who can buy legal knowledge and make full use of the rules of the law. Of course, the contemporary legal elite, as long as they understand this silently in their hearts, still want to give those blackened legal terms to those who need them in the name of specialization. After all, don't say it if you see through it.