Equality,as a long-standing principle of private law in China,fails to find its substantive presence in judicial reasoning.The problems are:first,the principle of equality lacks a clear definition.In particular,the legal interests it protects are not clarified;second,the principle of equality lacks a mechanism for its realization.In particular,the criteria for distinguishing between"discrimination"and"reasonable differential treatment"are unclear.In reviewing the theories of private law equality,one can find five types of theoretical models that can provide both the basis of legal interests(values)and the mechanism for realizing them(methodology),namely,the theory of transactional rationality,the theory of entity emptiness,the theory of relief for the weak,the theory of constitutional equality and the theory of human dignity.Each of the first four models has its own contribution,but there are also limitations.The theory of transactional rationality asserts that the equality of a transaction depends primarily on whether its profit-making mode conforms to commercial rationality.However,this view departs from the essence of equality.Although it refers to the idea of balancing legal interests between"the freedom to conduct a business and consumption equality",it does not provide a specific methodology.The theory of entity emptiness holds that equality is merely a mirror concept of existing civil rights and interests and does not really exist independently in itself.Although it gave birth to Aristotle's famous idea of equality,it has always fallen into circular reasoning because of the uncertainty of its own legal interests.The theory of relief for the weak advocates that equality is aimed at suppressing the strong and supporting the weak,which is a lofty ideal and embodies a deep insight into the nature of discrimination,but it is difficult to be practiced in the adjustment of micro-legal relations.The theory of constitutional equality believes that private law equality has essentially disappeared because of the disappearance of"substantive equality of power among people",on which it was based,and that in modern societies,where power is generally distributed in a heterogeneous manner,private law equality has been replaced by constitutional equality.The optimal theoretical model is the theory of human dignity.Private law equality is a subdivided type of legal interests of human dignity developed in the context of differential treatment.Taking the potential difference of power as a criterion,the social relations of differential treatment can be divided into two categories:the first category occurs between the superior and inferior parties of power when the autonomy rules of private law fail and the constitutional equality and judicial review mechanism need to play a role;the second category occurs among substantively equal subjects when the competitive market can spontaneously rectify discrimination,and if the market fails,then the principle of private law equality needs to intervene.Therefore,the private law equality has a dual structure where the private-law interests of human dignity dominate with the supplementary public-law interests of prohibiting the abuse of superior power.Based on the theory of human dignity,the"feature-scenario"dual test is widely used in extraterritorial anti-discrimination laws and can serve as a path to regularize the principle of equality.The rationale lies in the fact that the distinguishing features of the act being tested and the scenario in which it occurs are two elements that can reflect the"sensitivity for human dignity infringement"of the act.Under China's tort law system,the constituent elements of general torts are fully compatible with the dual test.In the element of"tortious act",the sensitivity of features and scenarios can be tested.In the element of"subjective fault",there is also a need for multi-level weighing:first,one should weigh the legal interests of equality and liberty,and refer to the logic of Hand Formula to allocate obligations and determine fault;second,one should treat the purchase cost of the public product of equality rationally,and avoid shifting the cost of governing structural discrimination to the defendant.
the principle of equalityanti-discriminationdistinguishing featuresAristotle's idea of equalityhuman dignity
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