中國第三部門的法理學研究
發(fā)布時間：2019-06-26 21:50
【摘要】：近代社會以來,民主政治和市場經(jīng)濟以其對公民權(quán)利和人的主體價值的弘揚,為第三部門的產(chǎn)生和發(fā)展提供了必要的土壤,而第三部門也以其強烈的社會責任感和自律精神為民主與法治提供了動力和保障。權(quán)力制約和權(quán)利保障已經(jīng)成為民主與法治的軸心。這就要求構(gòu)建社會權(quán)利與國家權(quán)力之間的良好關(guān)系,擴大社會權(quán)利的運行范圍,增強社會權(quán)利的自律能力,構(gòu)建規(guī)范社會權(quán)利運行的相關(guān)制度。中國近30年的歷史已經(jīng)證明,第三部門伴隨著改革開放的洪流而生,在市場經(jīng)濟發(fā)展的浪潮涌動中生生不息,以其獨有的方式使中國公民彼此攜起手來,為社會主義建設(shè)貢獻力量。汲取歷史經(jīng)驗,立足于現(xiàn)實,展望未來,不難發(fā)現(xiàn)在中國這樣的社會主義國家,構(gòu)建社會主義和諧社會的偉大目標決定了社會權(quán)利與政治權(quán)力之間在運行方向上是一致的,提倡公民權(quán)利保障,規(guī)范社會權(quán)利運行體系的根本目的是滿足人民需要,為人民謀福利。從這個意義上說,“為人民服務(wù)”不但是中國國家權(quán)力運行的根本目標,也是第三部門發(fā)展的終極目的。這一目的決定了中國第三部門的發(fā)展必須走出一條不同于西方國家的,具有中國特色的道路。 事實上,法律在具有一定普適性的同時,其本身也是一種“地方性知識”,由于各國在歷史文化、社會結(jié)構(gòu)、民族性格等方面的不同,其法律制度也呈現(xiàn)出千差萬別的特征,因此,要構(gòu)建中國特色的第三部門法律制度就必須立足于中國的現(xiàn)實社會狀況,以馬克思主義理論和中國社會主義法治理念為指導,尋找第三部門的理論基礎(chǔ),探索在中國制度環(huán)境下第三部門發(fā)展的有效路徑。本著理論與實踐相結(jié)合,以理論指導實踐的精神,本文采取了從理論基礎(chǔ)到制度構(gòu)建的研究方式。 首先,對中國第三部門的發(fā)展現(xiàn)狀進行客觀認識,以事實為基礎(chǔ),對中國第三部門所具有的不同于西方國家第三部門的特征進行梳理,在此為依托,對其功能進行闡述,并總結(jié)得出第三部門對法治發(fā)展的重要意義。 其次,辨明中國第三部門的理論根基。一直以來,市民社會理論都被認為是第三部門的理論基礎(chǔ)。西方國家的學者普遍認為第三部門的理論基礎(chǔ)經(jīng)過哈貝馬斯、柯亨及阿拉托的精彩演繹之后經(jīng)歷了一場由“市民社會——政治國家”的二元分立模式到“經(jīng)濟領(lǐng)域——市民社會——政治國家”的三元分立模式的轉(zhuǎn)變。上世紀60年代之后,第三部門在西方國家的蓬勃發(fā)展正是這一社會結(jié)構(gòu)之變革的有力體現(xiàn)。然而,將國家與社會之關(guān)系置于中國的歷史傳統(tǒng)和現(xiàn)實國情范圍內(nèi)進行考察時,不難發(fā)現(xiàn),如果將西方國家第三部門的理論基礎(chǔ)直接照搬或套用于中國第三部門的研究,勢必發(fā)生理論與現(xiàn)實的嚴重脫軌,進而產(chǎn)生中國第三部門的發(fā)展背離“為人民服務(wù)”這一宗旨的可能性。因此,堅持以馬克思市民社會理論為基礎(chǔ),并以包容的、開放的態(tài)度對待西方市民社會理論發(fā)展過程中的其他相關(guān)學說,汲取其精華,才能夠真正起到夯實中國第三部門理論基礎(chǔ)的作用。此外,在對權(quán)力制約模式和“以社會制約權(quán)力”模式進行比較分析的基礎(chǔ)上,展開對完善我國權(quán)力制約機制的思考,以社會與國家之關(guān)系的演變?yōu)橐暯?厘清第三部門與權(quán)力制約之間的關(guān)聯(lián)性,以此體現(xiàn)第三部門對構(gòu)建中國特色權(quán)力制約機制的重要意義。 再次,明確第三部門的法律權(quán)利和義務(wù),并就制度構(gòu)建過程中的主要問題進行分析和探討,使對第三部門的研究從基礎(chǔ)理論邁向具體制度構(gòu)建。法律權(quán)利方面,第三部門作為社會發(fā)展的重要推動力量,其以強烈的社會責任感和公共意識在社會生活的方方面面發(fā)揮著不可替代的巨大作用,然而,現(xiàn)實的制度困境卻使第三部門不得不在“制度夾縫”中艱難徘徊,頑強生長。要改變這種狀況,就必須對第三部門作為非營利組織和社會參與組織的相關(guān)權(quán)利進行法律上的界定,并以制度保障的方式為其營造良好的發(fā)展環(huán)境。法律義務(wù)方面,以對第三部門公共責任問題的討論為起點,明確其法定義務(wù),并以相關(guān)的義務(wù)監(jiān)督機制來保證第三部門運行的規(guī)范性。最終形成中國特色的權(quán)利義務(wù)相互配合、協(xié)調(diào)發(fā)展的制度模式。 以馬克思主義理論和社會主義法治理念為指導,構(gòu)建國家與社會之間的良性互動發(fā)展模式,并通過劃定第三部門權(quán)利義務(wù)的運行軌跡的方式,確保第三部門的發(fā)展始終與社會主義和諧社會的總體目標相一致。只有這樣,才能使第三部門成為中國國家發(fā)展和法治進程的重要推動力量,從而推動社會主義法治國家的早日建立。
[Abstract]:Since the modern society, the democratic politics and the market economy have provided the necessary soil for the production and development of the third sector with the carrying forward of the citizen's rights and the main value of the human body. The third part also provides the power and guarantee for democracy and the rule of law with its strong sense of social responsibility and self-discipline. The restriction of power and the guarantee of rights have become the axis of democracy and the rule of law. This requires the construction of a good relationship between the social rights and the state power, the expansion of the operating scope of the social rights, the strengthening of the self-discipline of the social rights, and the construction of the relevant system for regulating the operation of the social rights. The history of China's nearly 30 years has proved that the third sector is born with the flood of the reform and opening-up, and in the tide of the development of the market economy, the tide of the development of the market economy is growing, and the Chinese citizens join hands with each other in a unique way and contribute to the building of the socialist construction. Based on the experience of history, based on the reality and looking forward, it is not difficult to find that in a socialist country such as China, the great goal of building a socialist harmonious society determines that the social rights and political power are consistent in the direction of operation, and advocates the protection of the civil rights. The fundamental purpose of the system of regulating the system of social rights is to meet the needs of the people and to benefit the people. In this sense, the "to serve the people" is not only the fundamental goal of the power operation in China, but also the ultimate goal of the development of the third sector. This objective has determined that the development of the third sector of China must come out of a way that is different from that of the western countries and has Chinese characteristics. In fact, the law has a certain universality, and it is also a kind of "local knowledge", because of the differences in the historical culture, the social structure, the national character and so on, the legal system of the law also presents a thousand different features, The third department's legal system, which is to be built with Chinese characteristics, must be based on the realistic social situation of China, guided by the theory of Marxism and the concept of the socialist rule of law in China, and seek the theoretical foundation of the third sector and explore the effective way for the development of the third sector in the environment of the Chinese system. In the light of the combination of theory and practice, in order to guide the spirit of practice, this paper takes the study party from the theory foundation to the system construction. First, to make an objective understanding of the current situation of the development of the third sector in China, and on the basis of the facts, to comb the features of the third sector of China, which is different from that of the third sector of the western countries. The article expounds and summarizes the weight of the third department in the development of the rule of law. To make sense. Second, identify the third part of China The theory of the civil society has been regarded as the third sector. The theoretical basis of the third department is widely believed by the scholars in the western countries, and after the wonderful deduction of Habermas, Cohn and Alatoto, it has experienced a three-way separation from the binary discrete model of the "civil society _ political country" to the "Economic area _ civil society _ political country" The development of the third sector in the western countries is the change of this social structure after the 1960s. However, it is not difficult to find out that the theory and the reality of the third sector of the western countries will have to happen if the theoretical basis of the third department of the western countries is directly copied or used in the research of the third part of China. The development of the third sector of China is a departure from the "to serve the people". Therefore, on the basis of Marx's civil society theory, and with an inclusive and open-minded attitude to the other relevant theories in the development of the western civil society, it can really play a key role in the consolidation of the theory of the third sector in China In addition, on the basis of the comparative analysis of the power restriction mode and the "the power of social restriction" mode, the paper develops the thinking of improving the power restriction mechanism of our country, taking the evolution of the relationship between the society and the state as a visual angle, and clarifying the third department and the power restriction. The relationship between the third department and the building of the Chinese characteristic power restriction mechanism is reflected in this way The important meaning of the third department is to analyze and discuss the main problems in the construction of the system, so as to make the research on the third department from the basic theory. In the field of legal rights, the third department, as an important driving force for social development, plays an irreplaceable role in all aspects of social life in a strong sense of social responsibility and public awareness The great effect, however, the reality of the institutional dilemma has forced the third sector to be hard in the "system clamp" In order to change this situation, it is necessary to legally define the rights of the third sector as a non-profit organization and a social participation organization, and to create it in a systematic way Good development environment. The legal obligation, in order to start with the discussion of the public responsibility of the third department, clear its legal obligations, and guarantee the third part with the related obligation supervision mechanism The normative of the operation of the door. The rights and obligations that finally form the Chinese characteristics cooperate and coordinate with each other. The development of the system model. Guided by the theory of Marxism and the concept of the socialist rule of law, the model of the benign interaction between the state and society is established, and the right of the third department is defined. The way of the running track of the affairs to ensure that the development of the third department is always in harmony with the socialist harmonious society Only in this way can the third sector become an important driving force for China's national development and the rule of law process, thus promoting socialism
【學位授予單位】：武漢大學
【學位級別】：博士
【學位授予年份】：2011
【分類號】：D90;D632.9
本文編號：2506522
[Abstract]:Since the modern society, the democratic politics and the market economy have provided the necessary soil for the production and development of the third sector with the carrying forward of the citizen's rights and the main value of the human body. The third part also provides the power and guarantee for democracy and the rule of law with its strong sense of social responsibility and self-discipline. The restriction of power and the guarantee of rights have become the axis of democracy and the rule of law. This requires the construction of a good relationship between the social rights and the state power, the expansion of the operating scope of the social rights, the strengthening of the self-discipline of the social rights, and the construction of the relevant system for regulating the operation of the social rights. The history of China's nearly 30 years has proved that the third sector is born with the flood of the reform and opening-up, and in the tide of the development of the market economy, the tide of the development of the market economy is growing, and the Chinese citizens join hands with each other in a unique way and contribute to the building of the socialist construction. Based on the experience of history, based on the reality and looking forward, it is not difficult to find that in a socialist country such as China, the great goal of building a socialist harmonious society determines that the social rights and political power are consistent in the direction of operation, and advocates the protection of the civil rights. The fundamental purpose of the system of regulating the system of social rights is to meet the needs of the people and to benefit the people. In this sense, the "to serve the people" is not only the fundamental goal of the power operation in China, but also the ultimate goal of the development of the third sector. This objective has determined that the development of the third sector of China must come out of a way that is different from that of the western countries and has Chinese characteristics. In fact, the law has a certain universality, and it is also a kind of "local knowledge", because of the differences in the historical culture, the social structure, the national character and so on, the legal system of the law also presents a thousand different features, The third department's legal system, which is to be built with Chinese characteristics, must be based on the realistic social situation of China, guided by the theory of Marxism and the concept of the socialist rule of law in China, and seek the theoretical foundation of the third sector and explore the effective way for the development of the third sector in the environment of the Chinese system. In the light of the combination of theory and practice, in order to guide the spirit of practice, this paper takes the study party from the theory foundation to the system construction. First, to make an objective understanding of the current situation of the development of the third sector in China, and on the basis of the facts, to comb the features of the third sector of China, which is different from that of the third sector of the western countries. The article expounds and summarizes the weight of the third department in the development of the rule of law. To make sense. Second, identify the third part of China The theory of the civil society has been regarded as the third sector. The theoretical basis of the third department is widely believed by the scholars in the western countries, and after the wonderful deduction of Habermas, Cohn and Alatoto, it has experienced a three-way separation from the binary discrete model of the "civil society _ political country" to the "Economic area _ civil society _ political country" The development of the third sector in the western countries is the change of this social structure after the 1960s. However, it is not difficult to find out that the theory and the reality of the third sector of the western countries will have to happen if the theoretical basis of the third department of the western countries is directly copied or used in the research of the third part of China. The development of the third sector of China is a departure from the "to serve the people". Therefore, on the basis of Marx's civil society theory, and with an inclusive and open-minded attitude to the other relevant theories in the development of the western civil society, it can really play a key role in the consolidation of the theory of the third sector in China In addition, on the basis of the comparative analysis of the power restriction mode and the "the power of social restriction" mode, the paper develops the thinking of improving the power restriction mechanism of our country, taking the evolution of the relationship between the society and the state as a visual angle, and clarifying the third department and the power restriction. The relationship between the third department and the building of the Chinese characteristic power restriction mechanism is reflected in this way The important meaning of the third department is to analyze and discuss the main problems in the construction of the system, so as to make the research on the third department from the basic theory. In the field of legal rights, the third department, as an important driving force for social development, plays an irreplaceable role in all aspects of social life in a strong sense of social responsibility and public awareness The great effect, however, the reality of the institutional dilemma has forced the third sector to be hard in the "system clamp" In order to change this situation, it is necessary to legally define the rights of the third sector as a non-profit organization and a social participation organization, and to create it in a systematic way Good development environment. The legal obligation, in order to start with the discussion of the public responsibility of the third department, clear its legal obligations, and guarantee the third part with the related obligation supervision mechanism The normative of the operation of the door. The rights and obligations that finally form the Chinese characteristics cooperate and coordinate with each other. The development of the system model. Guided by the theory of Marxism and the concept of the socialist rule of law, the model of the benign interaction between the state and society is established, and the right of the third department is defined. The way of the running track of the affairs to ensure that the development of the third department is always in harmony with the socialist harmonious society Only in this way can the third sector become an important driving force for China's national development and the rule of law process, thus promoting socialism
【學位授予單位】：武漢大學
【學位級別】：博士
【學位授予年份】：2011
【分類號】：D90;D632.9
【參考文獻】
相關(guān)期刊論文 前10條
1 尚占環(huán),姚愛興;生物多樣性及生物多樣性保護[J];草原與草坪;2002年04期
2 李冬;日本的環(huán)境NGO[J];東北亞論壇;2002年03期
3 田野;;淺析推進社會管理創(chuàng)新的法律應(yīng)用[J];當代法學;2010年06期
4 崔開云;近年來我國非政府組織研究述評[J];東南學術(shù);2003年03期
5 韋森;個人主義與社群主義——東西方社會制序歷史演進路徑差異的文化原因[J];復旦學報(社會科學版);2003年03期
6 汪進元;權(quán)力制約的理性思考與模式選擇[J];法學評論;1998年01期
7 黃德林,唐承敏;公民的“知情權(quán)”及其實現(xiàn)[J];法學評論;2001年05期
8 馬俊駒;法人制度的基本理論和立法問題之探討(上)[J];法學評論;2004年04期
9 張帆;;我國非政府組織的現(xiàn)狀及完善[J];法制與社會;2009年28期
10 黃劍宇;;社會企業(yè):非營利組織發(fā)展的新方向[J];湖南工程學院學報(社會科學版);2010年02期
相關(guān)重要報紙文章 前1條
1 ;[N];人民日報;2008年
，本文編號：2506522
本文鏈接：http://www.sikaile.net/falvlunwen/falilunwen/2506522.html
