1. Is there still pure red gold in this world?
I read an article in Moments titled "A good relationship must involve talking about money." The core meaning is that human nature is selfish. To establish a good relationship between people, there will be value exchange. A good relationship must involve talking about money.
In fact, if the logic is adjusted, the expression may be clearer. Human survival and life require social exchange, but because people are naturally selfish (they all want to use small things to make a big gain), successful exchange is only possible if the exchange values ??are roughly equal (unless the other party is stupid). "Equal value" is usually reflected in the price, so you have to "negotiate money."
Based on the nature of seeking advantages and avoiding disadvantages, communication between people is essentially a value exchange that meets their own needs. Driven by self-interest, getting twice the result with half the effort, getting something for nothing, or even opportunistically taking advantage of loopholes, the latter two may be suspected of crimes and are not normal choices. When both parties want to work less/no work, the negotiation process is a game process. If the two are evenly matched, the game may be fair in the end and a deal may be concluded. If the strength is not equal and the transaction result is unfair, the transaction may be terminated, which is also a one-time transaction. Losers don’t want to deal with it next time. Selling a car last year and selling a car this year with separate transactions is fraud, commonly known as "fooling."
There is a wonderful line in "The Ming Dynasty 1566". The eunuch of the Jiangnan Weaving Bureau rebuked Jiangsu governor Zheng and Jiangsu envoy He Maocai for trying to shirk responsibility: "Even if you are an official, you have to think about yourself seven points, the court two points, and the rest for others. I want to think of your pure red gold." Is there still pure red gold in the world?" (...These two local dignitaries were later captured by Jin Yiwei!)
When it comes to his own business methods, Mr. Li Ka-shing said, Business cooperation must have three prerequisites. First, both parties must have the interests of cooperation, second, there must be a willingness to cooperate, and third, both parties must have the intention to enjoy * * * honors. All three are indispensable. Therefore, his son Li Zekai said in an interview: "My father never told me how to make money, he only taught me some principles of life and doing things. My father told me that you should cooperate with others. If you can get seven or eight points , then our Li family can get six points.”
The “Tao” of transactions refers to rules and formal fairness, as well as fairness and substantive fairness.
Two. Rules, balance and the legal profession
Law is concepts and rules, legal relationships are rights and obligations, rights and obligations are what you should and should not do, what I should and should not do, Underneath this are actions and consequences. A classic example is a bilateral contract in which rights and obligations are balanced against each other. At different stages of fulfillment, people treat each other and fulfill their obligations. You perform first, and if you fail to perform, the other party will have the right of defense to perform first, and you will perform later. But when people see that your ability to perform is significantly reduced and you may fall behind, they will have the right to defend and refuse to perform.
The reason why contract law sets these rules in the transaction process is to maintain transaction order, that is, "checks and balances", and the purpose is to ensure the safety and fairness of transactions. Inequality leads to imbalance and disputes. The function of judicial trials is to resolve disputes, adjust and repair damaged rights and obligations, regulate personal behavior, and maintain social order.
What is justice? Balance is justice, imbalance is strife. Between imbalance and balance, the legal profession emerges.
Third, fairness and conscience judgment
Speaking of this, I think of British equity. What is equity? how come?
The word "fairness" literally means balance. Equity is not based on the principle of stare decisis, but on the fairness, justice and conscience of the judge.
In general, the reason is that the common law is too complicated, requires procedures, and follows precedent. Before you file a lawsuit, you must first find precedents that address your dispute. If you can't find it, or if you find it wrong, you won't be able to file a lawsuit, or you'll lose. This is a complex writing system. This word is generally mentioned, followed by the word "many". Finding precedents is like looking for a needle in a haystack. It requires specialized people to find it, and the lawyer profession came into being. In countries with common law systems, litigation generally requires lawyers, because it is indeed not easy for ordinary people to get started. This is determined by the characteristics of the system. No wonder Bernard Shaw said that any profession is a conspiracy against ordinary people.
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In addition, in the common law courts at that time, the official language was not English, but a language similar to French, which the general public could not master and had to find a lawyer.
Another important social background is that at the end of 2015, Britain began to transform from a feudal society to a capitalist society. People increasingly found that some of their rights were unenforceable through the common law courts, and they turned to the King or Parliament for solutions. The king and parliament received the complaint and handed it over to the ministers. The Minister listens to both sides, conducts his own investigation and ultimately makes a judgment based on his own judgment and conscience. As the number of such cases increased, eventually a Court of Chancery was formed, parallel to the common law courts.
The Court of Chancery is not bound by the principle of precedent, has no complicated procedures, uses English, judges independently hear cases, and does not use the jury system. Complaints can be written in plain language, written trials are encouraged, and orders issued by the Chancellor are mandatory and binding. In long-term practice, the Court of Chancery has also formed a set of precedents, the so-called "equity". After the 19th century, through legislative reforms, the traditional common law was changed into statutory law, and civil and criminal procedures were reformed. Now judges can use both equity and common law, using equity when they conflict with each other.
Fourth, the difference between commercial trials and civil trials.
We sometimes find that, except for cases where the same case is decided differently, the causes and results of some cases decided by the Supreme Court are contradictory. One reason is that the concepts of civil trials and commercial trials are different, resulting in different legal applications and different judgment standards.
The concept of trial comes from the value orientation of legislation, which is the purpose of this provision. I often say that civil disputes are more important than principles, while commercial disputes are more important than rules. Since the parties to civil cases are mainly natural persons, civil trials pay attention to fairness and priority on the premise of recognizing the differences in the contracting abilities of the parties. The parties involved in commercial cases are mainly corporate legal persons, who are presumed to have professional judgment, a natural duty of care and the ability to deal on an equal footing. Therefore, in commercial trials, they pay more attention to giving priority to efficiency and protecting the fairness of contracting opportunities and forms.
Civil conduct assumes that participants are "ethical persons", while commercial conduct assumes that participants are "economic men". The former emphasizes the protection of personal rights and interests. In terms of property protection, civil trials emphasize maintaining the static safety of property. Commercial trials pay more attention to efficiency and encourage transactions.
In commercial disputes, judges are less involved in party autonomy than in traditional civil disputes. For example, in civil cases, the people's court can determine an obviously unfair result or set an excessively high liquidated damages based on the principle of fairness, and make necessary adjustments. However, courts need to be much more cautious in proactively adjusting manifestly unfair outcomes in commercial cases.
These differences are due to the different legislative values ??of the civil legal system and the commercial legal system, and the different natures of the two types of legal relationships.
Verb (abbreviation of verb) balance is justice
Based on the above topics, the concepts of ethical man and economic man should inspire us to understand various relationships and transactions.
In various subject transaction relationships, balance is justice. For example, if you are willing to love your daughter, it is worthwhile to exchange a mink fur for wine with a faint smile, otherwise you will die for your best friend. These are admirably good relationships, seemingly unequal, but people are particularly willing to do so. This is "a metaphor for a gentleman." In this kind of relationship, if you insist on "profit", it does not equal the value of "righteousness". In social and economic activities, the core is the metaphor of interests. If you also talk about love, it is also a value asymmetry. Therefore, a good relationship must distinguish its nature, follow rules, observe discipline, and have a proper way. The wisdom of choice lies in self-knowledge and appropriateness. In the final analysis, it is value equivalence, and balance is justice.