民間組織的法治功能研究
發(fā)布時(shí)間：2018-07-24 11:14
【摘要】： 法治的動(dòng)力來自于國(guó)家,但更來自于社會(huì),而且社會(huì)的力量對(duì)法治的推動(dòng)更為持久。民間組織作為社會(huì)力量的組織者對(duì)法治的影響是積極的,民間組織作為社會(huì)發(fā)展的必然產(chǎn)物,其對(duì)法治的貢獻(xiàn)是不可替代的。隨著社會(huì)與國(guó)家的分離,社會(huì)作為與國(guó)家相對(duì)的力量日益獲得了自身地位和發(fā)展的獨(dú)立性,但社會(huì)必須有自己的自治機(jī)制和自治組織,以此來整合民意,實(shí)現(xiàn)社會(huì)和諧有序發(fā)展,從而為民主政治的發(fā)展和法治實(shí)踐提供深層的社會(huì)基礎(chǔ),否則只能是一盤散沙。法學(xué)研究特別是法律制度研究的主要內(nèi)容是法律主體及其行為,社會(huì)力量的發(fā)展壯大必然會(huì)催生出大量的民間組織團(tuán)體,民間組織與外界發(fā)生的大量社會(huì)行為當(dāng)然應(yīng)受到法律規(guī)范的調(diào)整。民間組織在現(xiàn)實(shí)社會(huì)生活中的重要主體地位及其活動(dòng)形態(tài)決定了它必然是法學(xué)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(diǎn)。本研究更為關(guān)注的是民間組織能為社會(huì)發(fā)展提供有效組織載體,在整合民意,保障民權(quán),實(shí)現(xiàn)對(duì)公權(quán)力的監(jiān)督和制約乃至國(guó)家和社會(huì)互動(dòng)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(gòu)的重要內(nèi)容,是深化法治理論研究和拓展市民社會(huì)理論研究的重要內(nèi)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(huì)力量。但是,這種超前性關(guān)注是必要的,沒有理論發(fā)展的前瞻性,就沒有現(xiàn)實(shí)發(fā)展的導(dǎo)向性。 本論文從民間組織與法治構(gòu)建的關(guān)系作為研究的切入點(diǎn),將民間組織這一具體的社會(huì)角色提升到法治理想圖景建構(gòu)意義上的規(guī)范研究層面,進(jìn)而論證民間組織對(duì)法治構(gòu)建的積極意義。論文不僅從理性和邏輯的高度對(duì)民間組織與公民文化、民間組織與權(quán)力制約、民間組織與人權(quán)以及民間組織與公民參與四個(gè)方面對(duì)民間組織對(duì)法治的積極影響進(jìn)行詳盡研究。同時(shí),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(duì)于政府的獨(dú)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(chéng)信基礎(chǔ)等角度詳細(xì)探討民間組織對(duì)法治的負(fù)面影響。通過對(duì)二者關(guān)系多角度、正反兩方面的探討,努力實(shí)現(xiàn)研究的中道的權(quán)衡。 本文的研究是基于目前法治建設(shè)的諸多不足的現(xiàn)狀作為思考的起點(diǎn)而展開行文架構(gòu)的,中國(guó)目前法治建設(shè)的現(xiàn)狀和遇到的困難直觀層面反映為現(xiàn)實(shí)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(guó)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(duì)原有法治理論進(jìn)行反思,完善和改進(jìn)現(xiàn)有法治理論,用以指導(dǎo)現(xiàn)時(shí)的法治實(shí)踐,有效地將法治方案具體落實(shí)到現(xiàn)實(shí)的實(shí)踐主體及其行動(dòng)之上,從而使法治建構(gòu)理論一定程度地拋開一般性討論而轉(zhuǎn)換為可欲的實(shí)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(chǔ)——市民社會(huì)理論有其獨(dú)特的發(fā)展路徑和現(xiàn)實(shí)思考,因此,我們通過對(duì)中西方的對(duì)比,不僅可以獲取中國(guó)法治發(fā)展在建構(gòu)意義上的未來努力方向;而且可以為我們提供一個(gè)獨(dú)特的反思視角,即民間組織在中國(guó)語(yǔ)境下的現(xiàn)實(shí)可操作性。 本論文的創(chuàng)新主體顯現(xiàn)在:以往的實(shí)證研究立足于中國(guó)的國(guó)情,希望從中國(guó)的實(shí)際案例中探討民間組織的現(xiàn)狀和問題,發(fā)現(xiàn)西方意義上的民間組織,以此來構(gòu)建中國(guó)的市民社會(huì)。本論文在肯定實(shí)證研究的重大積極意義的同時(shí),認(rèn)為亦很有必要對(duì)中國(guó)民間組織的法治功能進(jìn)行理論層面上的抽象研究,對(duì)目前中國(guó)的政府主導(dǎo)型法治構(gòu)建模式提供反思和借鑒,另外也有利于學(xué)術(shù)上的理論與實(shí)踐的平衡。本研究正是力圖擺脫現(xiàn)有局面,選取了民間組織的法治功能作為研究視角,進(jìn)入深層論述。從民間組織與權(quán)力制約、公民參與、人權(quán)保障、公民文化四個(gè)路徑進(jìn)行研究,力求形成一套相對(duì)完整的民間組織與法治關(guān)系理論。我們認(rèn)為不論研究成功與否,首先就民間組織與法治關(guān)系的研究架構(gòu)這一層面而言,是具有理論的創(chuàng)新性的。法學(xué)本身不是一門狹隘的學(xué)科,尤其是在學(xué)科劃分日益細(xì)密的今天,任何學(xué)術(shù)研究都不能局限于自己的學(xué)術(shù)領(lǐng)域,而是應(yīng)當(dāng)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(xué)術(shù)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(guān)系更應(yīng)如此,從民間組織作為法律的主體和調(diào)整對(duì)象而言,民間組織屬于法學(xué)范疇;從民間組織是市民社會(huì)的重要組織載體,民間組織與社會(huì)整合而言,民間組織屬于社會(huì)學(xué)研究范疇;從民間組織作為國(guó)家的重要監(jiān)督制約主體而言,民間組織屬于政治學(xué)范疇。凡此種種,說明民間組織與法治關(guān)系研究界定為跨學(xué)科研究更為妥當(dāng),那么,如果從法學(xué)角度研究民間組織與法治的關(guān)系就必須吸收相關(guān)學(xué)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(xué)和社會(huì)學(xué)領(lǐng)域,法學(xué)范疇的研究主要側(cè)重于民間組織的法律規(guī)制層面。本研究擬在相關(guān)學(xué)科研究成果的基礎(chǔ)上,以法學(xué)研究為主線,穿插政治學(xué)、社會(huì)學(xué)等相關(guān)學(xué)科研究方法,力求用政治學(xué)、社會(huì)學(xué)的方法研究法學(xué)問題,爭(zhēng)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(xué)位授予單位】：中共中央黨校
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2010
【分類號(hào)】：D922.182.1
本文編號(hào)：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(xué)位授予單位】：中共中央黨校
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2010
【分類號(hào)】：D922.182.1
【引證文獻(xiàn)】
相關(guān)博士學(xué)位論文 前1條
1 王紅梅;商會(huì)與中國(guó)法制近代化[D];華東政法大學(xué);2010年
，本文編號(hào)：2141203
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