守法與違法之間：法經(jīng)濟(jì)學(xué)視角下的行為選擇分析
發(fā)布時(shí)間：2019-06-19 23:39
【摘要】：法治的最終目標(biāo)是法的實(shí)現(xiàn)，守法問(wèn)題是法學(xué)理論和社會(huì)主義法治建設(shè)領(lǐng)域中的一個(gè)重要論題，探究守法者行為選擇的邏輯已日趨重要。只有當(dāng)正義之法真正內(nèi)化成公眾的內(nèi)心認(rèn)同，法律才能真正有效地被普遍遵守。我國(guó)學(xué)者對(duì)于守法問(wèn)題的研究偏重于對(duì)守法倫理的訴求和守法精神的塑造，較少考慮他們所處的市場(chǎng)經(jīng)濟(jì)環(huán)境，更缺少對(duì)社會(huì)成員守法動(dòng)機(jī)的探求。利用法經(jīng)濟(jì)學(xué)中成本-收益的分析方法可以發(fā)現(xiàn)，左右人們守法與否的根本原因在于行為人對(duì)守法成本與違法成本的考量。當(dāng)守法成本低于違法成本時(shí)，此時(shí)守法對(duì)于行為人而言就是有收益的，“理性經(jīng)濟(jì)人”便會(huì)做出守法的行為選擇；當(dāng)守法成本高于違法成本時(shí)，此時(shí)守法對(duì)于行為人而言是無(wú)利可圖的，行為人受逐利本性的驅(qū)使會(huì)做出違法的行為選擇。我國(guó)在進(jìn)行法治建設(shè)實(shí)踐的過(guò)程中，必須在降低守法成本的同時(shí)讓違法者支付高額的違法成本，并使守法者獲得應(yīng)有的利益和獎(jiǎng)勵(lì)，以保證法律能被有效地遵守。因此，本文通過(guò)對(duì)行為人行為動(dòng)因的剖析來(lái)揭露現(xiàn)代社會(huì)中法律控制力的問(wèn)題，運(yùn)用法經(jīng)濟(jì)學(xué)的分析方法就守法和違法問(wèn)題進(jìn)行原理分析及量化驗(yàn)證，打破傳統(tǒng)法學(xué)抽象、思辨的研究邏輯存在的局限性，從而找出培養(yǎng)公民守法觀念與習(xí)慣的可行性路徑。 本文主要由四個(gè)部分構(gòu)成。 第一部分：守法與違法在法經(jīng)濟(jì)學(xué)視角下的特點(diǎn)以及行為選擇與法律的交換關(guān)系。在法經(jīng)濟(jì)學(xué)的視角下探討守法與違法的內(nèi)涵、外延及性質(zhì)，介紹守法與違法行為選擇的特點(diǎn)與基本原則，同時(shí)將成本-收益的思維方式引入其中，得到行為選擇與法律的交換模式，即守法行為與法律呈正交換關(guān)系，違法行為與法律呈負(fù)交換關(guān)系。 第二部分：守法與違法行為選擇的模型分析和守法與違法經(jīng)濟(jì)成本的構(gòu)成要素分析。首先，通過(guò)圖形曲線構(gòu)建出守法與違法行為選擇的各種模型，即牽涉?zhèn)�人基本生存利益時(shí)的絕對(duì)化行為模型、行為主體對(duì)法律的需求模型、加入政府調(diào)控行為后的法律供給模型。其次，運(yùn)用賦值的方法對(duì)行為選擇曲線進(jìn)行初步驗(yàn)證。最后，分析守法與違法經(jīng)濟(jì)成本的構(gòu)成要素，并根據(jù)理論研究得出相關(guān)公式，探尋出影響行為人進(jìn)行守法與違法行為選擇的根本性因素在于行為人對(duì)守法成本與違法成本的比較與衡量，只有守法成本低于違法成本的時(shí)候，行為人才會(huì)從內(nèi)心認(rèn)同法律規(guī)范，從而作用于外，做出守法的行為選擇。 第三部分：守法與違法行為模式的實(shí)踐驗(yàn)證。以“酒駕入罪”的社會(huì)現(xiàn)象為例，運(yùn)用成本-收益的經(jīng)濟(jì)分析方法對(duì)前文的各理論要點(diǎn)進(jìn)行實(shí)證驗(yàn)證。第一，法律應(yīng)以保障民生為先。這是人類對(duì)于基本生存權(quán)利所作出行為選擇的絕對(duì)性原理，也是法律規(guī)范制定和修改必須遵從、不容忽視的原理。第二，違法行為選擇與處罰強(qiáng)度之間是呈反比例關(guān)系的。處罰強(qiáng)度越大違法行為就越少發(fā)生。第三，守法是行為人基于守法與違法成本的比較而做出的選擇結(jié)果。 第四部分：守法趨向的培育和養(yǎng)成。根據(jù)前文的理論分析和實(shí)踐驗(yàn)證可知，要養(yǎng)成公民守法的習(xí)慣，，就要盡可能地降低守法成本、提高違法成本，讓法律規(guī)范變得更加經(jīng)濟(jì)與便捷。并根據(jù)結(jié)論提出完善我國(guó)法律規(guī)制的建議，以便更好地培養(yǎng)公眾的守法趨向。立法方面，應(yīng)首先注重法治對(duì)人性的引導(dǎo)作用，保障守法者的各項(xiàng)利益，尤其是公眾的基本生存權(quán)利。其次要充分考慮到守法成本與違法成本對(duì)行為人的影響，把守法成本降到最低。另外還要建立健全有效的激勵(lì)機(jī)制，以增加行為人的守法積極性。司法方面要做到罪當(dāng)其行，把握好懲罰的力度，既不能懲罰過(guò)度，也不可懲處不足。執(zhí)法方面，執(zhí)法者要注重提高執(zhí)法概率，加大違法行為的成本。
[Abstract]:The ultimate goal of the rule of law is the realization of law, the law-abiding problem is an important topic in the field of law theory and the construction of the socialist rule of law, and the logic of exploring the behavior choice of the law-abiding people is becoming more and more important. Only when the law of justice truly becomes the inner identity of the public, the law can be truly and effectively adhered to. The study of the law-abiding problems of Chinese scholars is more important than the pursuit of the law-abiding ethics and the spirit of the law-abiding, and the market economy environment in which they are located is less considered, and the search for the law-abiding motivation of the members of the society is more lacking. By using the method of cost-benefit analysis in the method of law economics, it can be found that the root cause of the law-abiding or non-compliance of the right and left people is that the actor's consideration of the law-abiding cost and the illegal cost. When the law-abiding cost is lower than the illegal cost, when the law-abiding cost is the benefit of the actor, the "rational economic person" will make the law-abiding behavior choice; when the law-abiding cost is higher than the illegal cost, the law-abiding cost is not profitable for the actor, The perpetrator is driven by a man-by-one nature to make an illegal act. In the course of the practice of the rule of law construction in our country, the law-abiding cost should be reduced, the law-abiding person should pay the high illegal cost, and the law-abiding person should be given the necessary benefits and rewards, so as to ensure that the law can be effectively observed. Therefore, through the analysis of the cause of the actor's behavior to reveal the problem of the legal control in the modern society, the author uses the method of law economics to analyze and verify the law-abiding and illegal problems, and break the limitation of the traditional law abstraction and the speculative research logic. So as to find out the feasible path of cultivating the concept and the habit of the citizen's law. This paper is mainly composed of four parts The first part: the characteristics of law-abiding and illegal in the perspective of law and economics, and the intersection of the choice of behavior and the law On the basis of law and economics, the connotation, denotation and nature of law-abiding and illegal are discussed, the characteristics and basic principles of the choice of law-abiding and illegal behaviors are introduced. At the same time, the thinking way of cost-income is introduced, and the choice of behavior and the intersection of law are obtained. The change mode, that is, the law-abiding act is in the positive exchange relationship with the law, and the illegal act is negative with the law. The second part: the model analysis of the choice of law-abiding and illegal behavior and the structure of the law-abiding and illegal economic cost In the first part, various models of the choice of law-abiding and illegal behaviors are constructed through the graph curve, that is, the absolute behavior model in the interest of the individual's basic survival, the demand model of the behavior subject to the law, and the law after the government's regulation and control behavior is added. Secondly, the method of assignment is applied to the behavior selection curve. In the end, the constituent elements of law-abiding and illegal economic cost are analyzed, and the relevant formula is obtained according to the theoretical study, and the fundamental factors that influence the choice of law-abiding and illegal behaviors of the actor are found. Compared with the measurement, only when the law-abiding cost is lower than the illegal cost, the behavior talents will recognize the legal norms from the inner, thus acting on the outside and abiding by the law The third part: law-abiding and illegal The practical verification of the model. Taking the social phenomenon of the "to be in charge of wine" as an example, the economic analysis method of the cost-income is applied to the above theories. Point-to-point verification. First, the law should in order to guarantee the people's livelihood first, this is the absolute principle of the choice of the behavior of the human being for the basic living right, and it is also the legal norm development and modification that must be followed, The principle of not being ignored. Second, between the choice of the illegal act and the intensity of the punishment. In an anti-proportional relationship. The greater the penalty is, the greater the law. The less the act is. Third, the law-abiding is the comparison of the doer based on the law-abiding and the illegal cost The results of the selection. Part IV: Gatekeeper According to the above-mentioned theoretical analysis and practical verification, it can be found that it is necessary to reduce the law-abiding cost as much as possible, to improve the illegal cost and to make the legal norm It has become more economical and convenient. Based on the conclusion, it is suggested to improve the legal regulation of our country, so as to make it more economical and convenient. To train the law-abiding trend of the public. In the aspect of legislation, it is necessary to focus on the guiding role of the rule of law on human nature and to safeguard the interests of the law-abiding people, especially the law-abiding people. Second, the influence of the law-abiding cost and the illegal cost on the actor should be fully taken into account. Reduce the cost of the law to the minimum. Establish a sound incentive mechanism to increase The law-abiding enthusiasm of the doer. In the aspect of the administration of justice, it is not only possible to punish the crime when it is in line and to grasp the punishment. in that case of law enforcement, law enforcement should focus on improving the probability of law enforcement,
【學(xué)位授予單位】：遼寧師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2012
【分類號(hào)】：D920.0
本文編號(hào)：2502729
[Abstract]:The ultimate goal of the rule of law is the realization of law, the law-abiding problem is an important topic in the field of law theory and the construction of the socialist rule of law, and the logic of exploring the behavior choice of the law-abiding people is becoming more and more important. Only when the law of justice truly becomes the inner identity of the public, the law can be truly and effectively adhered to. The study of the law-abiding problems of Chinese scholars is more important than the pursuit of the law-abiding ethics and the spirit of the law-abiding, and the market economy environment in which they are located is less considered, and the search for the law-abiding motivation of the members of the society is more lacking. By using the method of cost-benefit analysis in the method of law economics, it can be found that the root cause of the law-abiding or non-compliance of the right and left people is that the actor's consideration of the law-abiding cost and the illegal cost. When the law-abiding cost is lower than the illegal cost, when the law-abiding cost is the benefit of the actor, the "rational economic person" will make the law-abiding behavior choice; when the law-abiding cost is higher than the illegal cost, the law-abiding cost is not profitable for the actor, The perpetrator is driven by a man-by-one nature to make an illegal act. In the course of the practice of the rule of law construction in our country, the law-abiding cost should be reduced, the law-abiding person should pay the high illegal cost, and the law-abiding person should be given the necessary benefits and rewards, so as to ensure that the law can be effectively observed. Therefore, through the analysis of the cause of the actor's behavior to reveal the problem of the legal control in the modern society, the author uses the method of law economics to analyze and verify the law-abiding and illegal problems, and break the limitation of the traditional law abstraction and the speculative research logic. So as to find out the feasible path of cultivating the concept and the habit of the citizen's law. This paper is mainly composed of four parts The first part: the characteristics of law-abiding and illegal in the perspective of law and economics, and the intersection of the choice of behavior and the law On the basis of law and economics, the connotation, denotation and nature of law-abiding and illegal are discussed, the characteristics and basic principles of the choice of law-abiding and illegal behaviors are introduced. At the same time, the thinking way of cost-income is introduced, and the choice of behavior and the intersection of law are obtained. The change mode, that is, the law-abiding act is in the positive exchange relationship with the law, and the illegal act is negative with the law. The second part: the model analysis of the choice of law-abiding and illegal behavior and the structure of the law-abiding and illegal economic cost In the first part, various models of the choice of law-abiding and illegal behaviors are constructed through the graph curve, that is, the absolute behavior model in the interest of the individual's basic survival, the demand model of the behavior subject to the law, and the law after the government's regulation and control behavior is added. Secondly, the method of assignment is applied to the behavior selection curve. In the end, the constituent elements of law-abiding and illegal economic cost are analyzed, and the relevant formula is obtained according to the theoretical study, and the fundamental factors that influence the choice of law-abiding and illegal behaviors of the actor are found. Compared with the measurement, only when the law-abiding cost is lower than the illegal cost, the behavior talents will recognize the legal norms from the inner, thus acting on the outside and abiding by the law The third part: law-abiding and illegal The practical verification of the model. Taking the social phenomenon of the "to be in charge of wine" as an example, the economic analysis method of the cost-income is applied to the above theories. Point-to-point verification. First, the law should in order to guarantee the people's livelihood first, this is the absolute principle of the choice of the behavior of the human being for the basic living right, and it is also the legal norm development and modification that must be followed, The principle of not being ignored. Second, between the choice of the illegal act and the intensity of the punishment. In an anti-proportional relationship. The greater the penalty is, the greater the law. The less the act is. Third, the law-abiding is the comparison of the doer based on the law-abiding and the illegal cost The results of the selection. Part IV: Gatekeeper According to the above-mentioned theoretical analysis and practical verification, it can be found that it is necessary to reduce the law-abiding cost as much as possible, to improve the illegal cost and to make the legal norm It has become more economical and convenient. Based on the conclusion, it is suggested to improve the legal regulation of our country, so as to make it more economical and convenient. To train the law-abiding trend of the public. In the aspect of legislation, it is necessary to focus on the guiding role of the rule of law on human nature and to safeguard the interests of the law-abiding people, especially the law-abiding people. Second, the influence of the law-abiding cost and the illegal cost on the actor should be fully taken into account. Reduce the cost of the law to the minimum. Establish a sound incentive mechanism to increase The law-abiding enthusiasm of the doer. In the aspect of the administration of justice, it is not only possible to punish the crime when it is in line and to grasp the punishment. in that case of law enforcement, law enforcement should focus on improving the probability of law enforcement,
【學(xué)位授予單位】：遼寧師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2012
【分類號(hào)】：D920.0
【參考文獻(xiàn)】
相關(guān)期刊論文 前10條
1 張普定;;“酒駕”入罪法理探析[J];太原師范學(xué)院學(xué)報(bào)(社會(huì)科學(xué)版);2010年02期
2 程蕊;;試論我國(guó)行政立法的完善——基于成本-效益分析[J];福建行政學(xué)院福建經(jīng)濟(jì)管理干部學(xué)院學(xué)報(bào);2007年03期
3 謝望原;;“飆車”致人死傷行為的定性[J];法制資訊;2009年Z1期
4 左建龍;法的經(jīng)濟(jì)分析:理論述評(píng)[J];國(guó)外社會(huì)科學(xué);1992年03期
5 王曉爍;劉慶順;;守法行為的心理因素分析[J];河北大學(xué)學(xué)報(bào)(哲學(xué)社會(huì)科學(xué)版);2010年06期
6 郟紅雯;;對(duì)“酒后、醉酒駕駛”的有關(guān)思考[J];遼寧警專學(xué)報(bào);2010年02期
7 楊依山;王金利;;“經(jīng)濟(jì)人”假設(shè)的歷史演變及再探討[J];理論學(xué)刊;2007年08期
8 肖彥平;;構(gòu)建和諧社會(huì)的人性訴求[J];林區(qū)教學(xué);2011年04期
9 李秋香;論守法的成本與效益[J];蘭州學(xué)刊;2005年03期
10 高中建;孟利艷;;利益主體行為關(guān)系的屬性與社會(huì)和諧[J];南京政治學(xué)院學(xué)報(bào);2008年02期
相關(guān)碩士學(xué)位論文 前3條
1 樊燕輝;透過(guò)越軌行為的法律動(dòng)因探求現(xiàn)代社會(huì)法律控制的正確路徑[D];華東政法大學(xué);2007年
2 朱曦;守法倫理研究[D];南京師范大學(xué);2008年
3 韓天星;論經(jīng)濟(jì)法的公共利益價(jià)值[D];華中科技大學(xué);2009年
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