The legal definition of negative list

【Abstract】The negative list is an attempt for China to push ahead with the reformation of its government management system and the establishment of a mature market economy. This essay will analyse the meaning of the negative list from the negative list of market regulation and market management for the protection of freedom from two aspects， and expound the ways in which the negative list can be used for the construction of effective government and its active role in promoting the process of Chinas rule of law.

【Key words】negative list； Market subject； Liberalism Resource allocation

The history of negative lists is remote. “As a negotiating path and technology for any agreement， the negative list has been around for centuries”. “As a foreign investment access system， it is a blacklist of countries that prohibit foreign investment or restrict the proportion of foreign capital”. Industries on the list must be approved by the government to conduct business in China， while those not on the list are open and free. In the present era， the negative inventory management model has been applied， either directly or indirectly， in the entire economic field， and it has become a new model of government regulation in developed countries.

In the market system， investment management constitutes an important part of market management. Participants in market activities can and cannot be strictly defined. In view of this， the negative list not only regulates the market subject qualification， but also adjusts the relevant market behaviour. The classic Western legal proverb “no prohibition as the law” can be used to summarize the characteristics of negative list management， as long as the legal and normative documents explicitly prohibit the main market for certain behaviour， market players can act accordingly. As can be seen， in such a rule， the market subject is given great freedom. On the contrary， if it is a positive list， the opportunity for market participants to enter the market will be much smaller. As a matter of fact， whether the market subject and its behaviour can enter the market and whether the behaviour is accepted by the market is subject to the role of legal norms or administrative power. However， in the case of the negative list， the law is the only basis， which also conforms to proverb “no prohibition of law can be as”.

The negative list advocates the protection of the free spirit of market participants， and advocates for the reduction of executive power， that is， excessive involvement of public power in the private sector， thus expanding the freedom enjoyed by the market subject. In classical liberalism， the economic philosophy of the “negative” has deeply influenced the concept of the negative list， and it also constitutes the theoretical basis of the negative list management model. Cicero， a jurist in ancient Rome， pointed out that if there were no restrictions imposed by law， everyone could do as they wished， and the result would be the destruction of freedom. “For freedom， we are slaves to the law.” Montesquieu also explained this idea. The main purpose of the negative list to achieve a mature market within the scope of statutory autonomy， so that it can set up the legal relationship between the legal jurisdiction in accordance with their wishes through the intervention of public power of freedom. The negative list follows the principle that the “rule of law can not be prohibited”； the market access to the main body encourages it to diversify its focus， so that market players can determine their own behaviour. The economic adjustment process will be applied to a variety of means to decide， as a feature of the process of economic adjustment means， to maximize the efficient and reasonable allocation of labour and capital. The adjustment of other means， such as national regulatory measures， are slow to implement and are much more complicated. The reliability of this adjustment is based on the changing characteristics of the market and the rational limitations of the legislators. Through legalism， we can see that once the personal act does not meet the statutory requirements， the act may be declared invalid， which is contrary to the rapidly changing market economy. It is still difficult to accurately predict the actions of legislators， and the executive power of government departments as law enforcers is more efficient. Administrative power has the characteristics of self-expansion， resulting in the government not consciously exceeding its authority in the process of the exercise of government functions， and its positioning has become increasingly blurred. The negative list gives the government specific power range and has greatly curbed the power of rent-seeking behaviour， so as to better perform the functions of the government.endprint

“Although an effective government is necessary for development， the national centre position in economic and social development is not as a direct provider of growth， but as a collaborator， catalyst and facilitator.” With the help of the negative list， the government is in the process of exercising slowly to set itself up as a bottom line， finding a way to play a decisive role in the market in the allocation of resources at the macro level， and how government regulation will have a clear and specific boundary. At the same time， the negative list plays an active role in the rent-seeking behaviour of power and leads to corruption. Before the negative list， the government controlled a large amount of administrative approval， and market players engaged in various business activities had to obtain government approval before establishing themselves in China， which provides space and possibility for powerful department staff to breach the privilege of administrative examination and approval， and gradually became a hotbed of corruption. However， when the governments management rights are clearly defined and publicized by the negative list， the opportunities for rent-seeking are greatly reduced， and market participants also have the legal power to fight against illegal activities in the economic field. The negative list management model has changed the government monopoly of all management rights situations， with the list of matters outside the discipline relying on market regulation and industry， thus forming a “benign interaction market government society” pattern of multiple subjects.

References：

[1]Lu Zhenhua，“negative list” brief history， N.21 Century Business Herald， 2014-01-01.

作者簡介：杜健（1992.5.5-），男，汉族，山东潍坊高密人，硕士，研究方向：行政法。endprint