民間組織的法治功能研究
發(fā)布時間：2018-07-24 11:14
【摘要】： 法治的動力來自于國家,但更來自于社會,而且社會的力量對法治的推動更為持久。民間組織作為社會力量的組織者對法治的影響是積極的,民間組織作為社會發(fā)展的必然產物,其對法治的貢獻是不可替代的。隨著社會與國家的分離,社會作為與國家相對的力量日益獲得了自身地位和發(fā)展的獨立性,但社會必須有自己的自治機制和自治組織,以此來整合民意,實現社會和諧有序發(fā)展,從而為民主政治的發(fā)展和法治實踐提供深層的社會基礎,否則只能是一盤散沙。法學研究特別是法律制度研究的主要內容是法律主體及其行為,社會力量的發(fā)展壯大必然會催生出大量的民間組織團體,民間組織與外界發(fā)生的大量社會行為當然應受到法律規(guī)范的調整。民間組織在現實社會生活中的重要主體地位及其活動形態(tài)決定了它必然是法學研究的問題所在,目前的研究也主要是從這一層面而言的,此不是本研究的重點。本研究更為關注的是民間組織能為社會發(fā)展提供有效組織載體,在整合民意,保障民權,實現對公權力的監(jiān)督和制約乃至國家和社會互動方面發(fā)揮重要作用。研究民間組織不僅僅是微觀層面的研究,更是憲政建構的重要內容,是深化法治理論研究和拓展市民社會理論研究的重要內容。因此,雖然民間組織本身還處于發(fā)展階段,沒有形成一種穩(wěn)定的社會力量。但是,這種超前性關注是必要的,沒有理論發(fā)展的前瞻性,就沒有現實發(fā)展的導向性。 本論文從民間組織與法治構建的關系作為研究的切入點,將民間組織這一具體的社會角色提升到法治理想圖景建構意義上的規(guī)范研究層面,進而論證民間組織對法治構建的積極意義。論文不僅從理性和邏輯的高度對民間組織與公民文化、民間組織與權力制約、民間組織與人權以及民間組織與公民參與四個方面對民間組織對法治的積極影響進行詳盡研究。同時,論文還從民間組織自身存在異化的可能性;民間組織缺少相對于政府的獨立性;民間組織全球化帶來的挑戰(zhàn);民間組織發(fā)展模式的特殊性;民間組織自身的整合能力和誠信基礎等角度詳細探討民間組織對法治的負面影響。通過對二者關系多角度、正反兩方面的探討,努力實現研究的中道的權衡。 本文的研究是基于目前法治建設的諸多不足的現狀作為思考的起點而展開行文架構的,中國目前法治建設的現狀和遇到的困難直觀層面反映為現實中背離法治的行為,但根源在于法治理論自身的不完善。而中國目前的法治理論研究還是不自足的,不能滿足法治發(fā)展的需要,迫切需要對原有法治理論進行反思,完善和改進現有法治理論,用以指導現時的法治實踐,有效地將法治方案具體落實到現實的實踐主體及其行動之上,從而使法治建構理論一定程度地拋開一般性討論而轉換為可欲的實踐路徑,這是本文的研究初衷。民間組織即非政府組織的研究主要是借鑒于西方的,民間組織的理論基礎——市民社會理論有其獨特的發(fā)展路徑和現實思考,因此,我們通過對中西方的對比,不僅可以獲取中國法治發(fā)展在建構意義上的未來努力方向;而且可以為我們提供一個獨特的反思視角,即民間組織在中國語境下的現實可操作性。 本論文的創(chuàng)新主體顯現在:以往的實證研究立足于中國的國情,希望從中國的實際案例中探討民間組織的現狀和問題,發(fā)現西方意義上的民間組織,以此來構建中國的市民社會。本論文在肯定實證研究的重大積極意義的同時,認為亦很有必要對中國民間組織的法治功能進行理論層面上的抽象研究,對目前中國的政府主導型法治構建模式提供反思和借鑒,另外也有利于學術上的理論與實踐的平衡。本研究正是力圖擺脫現有局面,選取了民間組織的法治功能作為研究視角,進入深層論述。從民間組織與權力制約、公民參與、人權保障、公民文化四個路徑進行研究,力求形成一套相對完整的民間組織與法治關系理論。我們認為不論研究成功與否,首先就民間組織與法治關系的研究架構這一層面而言,是具有理論的創(chuàng)新性的。法學本身不是一門狹隘的學科,尤其是在學科劃分日益細密的今天,任何學術研究都不能局限于自己的學術領域,而是應當吸收相互的研究成果和研究方法,做到你中有我,我中有你,方為學術研究的上乘境界,否則只能在原地打圈圈。民間組織與法治的研究關系更應如此,從民間組織作為法律的主體和調整對象而言,民間組織屬于法學范疇;從民間組織是市民社會的重要組織載體,民間組織與社會整合而言,民間組織屬于社會學研究范疇;從民間組織作為國家的重要監(jiān)督制約主體而言,民間組織屬于政治學范疇。凡此種種,說明民間組織與法治關系研究界定為跨學科研究更為妥當,那么,如果從法學角度研究民間組織與法治的關系就必須吸收相關學科的研究方法和成果。而且從目前的研究成果來看,更多的集中于政治學和社會學領域,法學范疇的研究主要側重于民間組織的法律規(guī)制層面。本研究擬在相關學科研究成果的基礎上,以法學研究為主線,穿插政治學、社會學等相關學科研究方法,力求用政治學、社會學的方法研究法學問題,爭取使研究成果更全面、客觀、豐滿。
[Abstract]:The motive force of the rule of law comes from the state, but it comes from the society, and it is more from the society, and the power of the society is more lasting for the rule of law. The influence of the civil organization as a social force organizer on the rule of law is positive. As an inevitable product of the social development, the contribution of the folk organization is irreplaceable. As a force that is relative to the state, it will gain the independence of its own status and development, but the society must have its own self-government mechanism and self-government organization, so as to integrate the public opinion and realize the harmonious and orderly development of the society, thus providing a deep social foundation for the development of democracy and the practice of the rule of law. Otherwise, the law can only be scattered. The main content of the study, especially the legal system, is the legal subject and its behavior. The development and expansion of the social forces will inevitably lead to the emergence of a large number of civil organizations. The large number of social behavior of the civil organizations and the outside world should of course be adjusted by the legal norms. The form of activity determines that it is the problem of legal research. The current research is mainly from this level. This is not the focus of this study. This study is more concerned with the fact that the civil organizations can provide effective organizational carrier for social development, integrate public opinion, guarantee civil rights, and realize the supervision and restriction of public power and even the country. The study of the interaction between home and society plays an important role. The study of folk organizations is not only a microscopic study, but also an important content of constitutional construction. It is an important content of deepening the research on the theory of the rule of law and expanding the theoretical research of the civil society. Therefore, although the civil organization itself is still at the stage of development, it has not formed a stable social force. However, this kind of advance concern is necessary. Without the foresight of theoretical development, there is no guidance for realistic development.
This paper, from the relationship between the civil organization and the construction of the rule of law, as the breakthrough point of the study, promotes the specific social role of the civil organization to the normative research level of the construction of the ideal picture of the rule of law, and then demonstrates the positive significance of the civil organizations to the construction of the rule of law. Culture, civil organizations and power constraints, civil organizations and human rights as well as civil organizations and citizen participation in four aspects of the positive impact of civil organizations on the rule of law in detail. At the same time, the paper also from the possibility of the alienation of the private organization itself; the lack of civil organizations relative to the independence of the government; the globalization of civil organizations brought about. Challenge, the particularity of the development model of civil organization, the integration ability and the foundation of the civil organization, the negative influence of the civil organization on the rule of law is discussed in detail. Through the discussion of the relationship between the two parties, the positive and negative two aspects are discussed, and the trade-off of the middle of the study is achieved.
The research of this article is based on the current situation of the legal construction of the rule of law as the starting point of the thinking. The present situation of the construction of the rule of law in China and the difficulty of the encounter are reflected in the practice of deviating from the rule of law in reality, but the root lies in the imperfection of the theory of the rule of law itself. It is not self-sufficient to meet the needs of the development of the rule of law. It is urgent to reflect on the original rule of law theory, improve and improve the existing rule of law theory, to guide the practice of the rule of law, and effectively put the rule of law into practical subjects and actions, so that the theory of the rule of law is to a certain extent. This is the original purpose of this study. The research of non-governmental organizations, i.e. non-governmental organizations, is mainly based on the western and the theoretical basis of the civil society. The theory of civil society has its own unique development path and realistic thinking. Therefore, we can not only obtain the middle and Western countries through the comparison of China and the West. The development of the country's rule of law in the construction of the future direction of construction, and can provide us with a unique perspective of reflection, that is, the realistic operability of the civil organizations in the Chinese context.
The main innovation of this paper is as follows: the previous empirical research is based on the national conditions of China, and hopes to explore the status and problems of the civil organizations from the actual cases in China, and find the civil organizations in the Western sense to build China's civil society. It is necessary to carry out an abstract study on the legal function of the Chinese folk organizations and provide a reflection and reference to the current Chinese government led rule of law construction model, and also to the balance of academic theory and practice. This study is trying to get rid of the existing situation and select the function of the rule of law of the civil organizations as a study. From the four paths of civil organization and power restriction, citizen participation, human rights protection and citizen culture, we try to form a relatively complete set of theory of the relationship between civil organizations and the rule of law. We think that whether the research is successful or not, the first is the research framework of the relationship between the folk organization and the rule of law. It is innovative in theory. Law is not a narrow subject itself, especially in the day when the division of discipline is becoming more and more fine. Any academic research can not be limited to its own academic field, but should absorb the research results and research methods of each other. The research relationship between the civil organization and the rule of law should be more so. From the civil organization as the subject of the law and the object of adjustment, the folk organizations belong to the legal category; the folk organizations are the important carrier of the civil society, the folk organizations and the society are integrated, and the folk organizations belong to the category of sociological research; from the folk organizations, the folk organizations are the category of the sociological research; As an important subject of supervision and restriction of the country, the organization belongs to the category of political science. All this, it is more appropriate for the study of the relationship between the civil organization and the rule of law as a cross disciplinary study. From the present research results, more concentrated in the field of political and sociological studies. The study of the category of law mainly focuses on the legal regulation level of the civil organizations. On the basis of the research results of relevant disciplines, this study intends to apply the research methods of political science, social science and other related subjects, and strive to use politics, society, and other related subjects on the basis of the research results of relevant disciplines. We will study methods of law and strive to make the research results more comprehensive, objective and plentiful.
【學位授予單位】：中共中央黨校
【學位級別】：博士
【學位授予年份】：2010
【分類號】：D922.182.1
本文編號：2141203
[Abstract]:The motive force of the rule of law comes from the state, but it comes from the society, and it is more from the society, and the power of the society is more lasting for the rule of law. The influence of the civil organization as a social force organizer on the rule of law is positive. As an inevitable product of the social development, the contribution of the folk organization is irreplaceable. As a force that is relative to the state, it will gain the independence of its own status and development, but the society must have its own self-government mechanism and self-government organization, so as to integrate the public opinion and realize the harmonious and orderly development of the society, thus providing a deep social foundation for the development of democracy and the practice of the rule of law. Otherwise, the law can only be scattered. The main content of the study, especially the legal system, is the legal subject and its behavior. The development and expansion of the social forces will inevitably lead to the emergence of a large number of civil organizations. The large number of social behavior of the civil organizations and the outside world should of course be adjusted by the legal norms. The form of activity determines that it is the problem of legal research. The current research is mainly from this level. This is not the focus of this study. This study is more concerned with the fact that the civil organizations can provide effective organizational carrier for social development, integrate public opinion, guarantee civil rights, and realize the supervision and restriction of public power and even the country. The study of the interaction between home and society plays an important role. The study of folk organizations is not only a microscopic study, but also an important content of constitutional construction. It is an important content of deepening the research on the theory of the rule of law and expanding the theoretical research of the civil society. Therefore, although the civil organization itself is still at the stage of development, it has not formed a stable social force. However, this kind of advance concern is necessary. Without the foresight of theoretical development, there is no guidance for realistic development.
This paper, from the relationship between the civil organization and the construction of the rule of law, as the breakthrough point of the study, promotes the specific social role of the civil organization to the normative research level of the construction of the ideal picture of the rule of law, and then demonstrates the positive significance of the civil organizations to the construction of the rule of law. Culture, civil organizations and power constraints, civil organizations and human rights as well as civil organizations and citizen participation in four aspects of the positive impact of civil organizations on the rule of law in detail. At the same time, the paper also from the possibility of the alienation of the private organization itself; the lack of civil organizations relative to the independence of the government; the globalization of civil organizations brought about. Challenge, the particularity of the development model of civil organization, the integration ability and the foundation of the civil organization, the negative influence of the civil organization on the rule of law is discussed in detail. Through the discussion of the relationship between the two parties, the positive and negative two aspects are discussed, and the trade-off of the middle of the study is achieved.
The research of this article is based on the current situation of the legal construction of the rule of law as the starting point of the thinking. The present situation of the construction of the rule of law in China and the difficulty of the encounter are reflected in the practice of deviating from the rule of law in reality, but the root lies in the imperfection of the theory of the rule of law itself. It is not self-sufficient to meet the needs of the development of the rule of law. It is urgent to reflect on the original rule of law theory, improve and improve the existing rule of law theory, to guide the practice of the rule of law, and effectively put the rule of law into practical subjects and actions, so that the theory of the rule of law is to a certain extent. This is the original purpose of this study. The research of non-governmental organizations, i.e. non-governmental organizations, is mainly based on the western and the theoretical basis of the civil society. The theory of civil society has its own unique development path and realistic thinking. Therefore, we can not only obtain the middle and Western countries through the comparison of China and the West. The development of the country's rule of law in the construction of the future direction of construction, and can provide us with a unique perspective of reflection, that is, the realistic operability of the civil organizations in the Chinese context.
The main innovation of this paper is as follows: the previous empirical research is based on the national conditions of China, and hopes to explore the status and problems of the civil organizations from the actual cases in China, and find the civil organizations in the Western sense to build China's civil society. It is necessary to carry out an abstract study on the legal function of the Chinese folk organizations and provide a reflection and reference to the current Chinese government led rule of law construction model, and also to the balance of academic theory and practice. This study is trying to get rid of the existing situation and select the function of the rule of law of the civil organizations as a study. From the four paths of civil organization and power restriction, citizen participation, human rights protection and citizen culture, we try to form a relatively complete set of theory of the relationship between civil organizations and the rule of law. We think that whether the research is successful or not, the first is the research framework of the relationship between the folk organization and the rule of law. It is innovative in theory. Law is not a narrow subject itself, especially in the day when the division of discipline is becoming more and more fine. Any academic research can not be limited to its own academic field, but should absorb the research results and research methods of each other. The research relationship between the civil organization and the rule of law should be more so. From the civil organization as the subject of the law and the object of adjustment, the folk organizations belong to the legal category; the folk organizations are the important carrier of the civil society, the folk organizations and the society are integrated, and the folk organizations belong to the category of sociological research; from the folk organizations, the folk organizations are the category of the sociological research; As an important subject of supervision and restriction of the country, the organization belongs to the category of political science. All this, it is more appropriate for the study of the relationship between the civil organization and the rule of law as a cross disciplinary study. From the present research results, more concentrated in the field of political and sociological studies. The study of the category of law mainly focuses on the legal regulation level of the civil organizations. On the basis of the research results of relevant disciplines, this study intends to apply the research methods of political science, social science and other related subjects, and strive to use politics, society, and other related subjects on the basis of the research results of relevant disciplines. We will study methods of law and strive to make the research results more comprehensive, objective and plentiful.
【學位授予單位】：中共中央黨校
【學位級別】：博士
【學位授予年份】：2010
【分類號】：D922.182.1
【引證文獻】
相關博士學位論文 前1條
1 王紅梅;商會與中國法制近代化[D];華東政法大學;2010年
，本文編號：2141203
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