论程序控权

发布时间：2018-05-15 15:47

本文选题：程序控权 + 正当法律程序　；参考：《西南政法大学》2011年硕士论文

【摘要】：权力从一产生就具有鲜明的二重性,它既能给国家、社会和人民带来利益和好处,但同时也有可能带来灾难与毁灭,是名副其实的双刃剑。扩张性、腐蚀性和破坏性是权力的本性,而且正是由于权力的这些固有缺陷,为限制权力提供了根据。就对权力的限制而言一般存在两种形式,一种是实体控权,即通过合理分权的权力结构体系或宪政体制,来实现对权力的控制,另一种是程序控权。由注重对权限和责任等实体方面的约束,也就是实体控权,向更加关注程序性制约的倾向性变化,是现代法治国家在权力制约机制上的一大趋势。正当法律程序原则是程序控权的精髓,它最早起源于英国,但真正将其发扬光大并传播于世界的却是美国。它将正当法律程序分为程序性的和实质性的,其中程序性正当法律程序审查政府在作出剥夺个人生命、自由或财产行为时所遵守的程序,而实质性正当法律程序则涉及政府政策法令内容的合理性问题。从传统上讲,我国是一个典型的德治国家,长期以来实体真实主义一直在司法中居于统治地位。它与几千年来我国封建社会所形成的传统价值观念和法律文化密切相关。加上近代以来,我国实行政府推进型的法治发展模式,虽然取得了丰硕的成果但是也带来了一定的弊端,其直接的后果就是使得公权力过于强大,国家权力与公民权利之间的关系不平衡,崇拜权力的观念异常强烈,对公民个人权利保护,无论从广度还是从力度上讲,都是远远不够。因此,在我国构建具有中国特色的程序控权模式,发挥程序在控制权力方面的功能和作用,则显得尤为重要了。程序控权闪耀着西方法治传统和精神的光辉,它所体现的对人的尊严、权利、价值的终极关怀,是人类法治文明的重要成果。西方国家在程序控权方面的发展成果及经验教训,对我国建设社会主义法治国家有极其重要的意义。我国程序控权的路径可以从以下几个方面探索:首先,确立程序控权的理念是实现程序控权之前提,其次,将正当法律程序原则入宪是确立程序控权之基础,再次,改革、完善我国现有的程序法律制度与规则是实现程序控权之保障,最后,强化个人权利保障是实现程序控权之核心。
[Abstract]:Power has a distinct duality since it came into being. It can not only bring benefits and benefits to the country, society and people, but also bring disaster and destruction. It is a double-edged sword worthy of the name. Expansibility, corrosiveness and destruction are the nature of power, and it is these inherent defects of power that provide the basis for restricting power. There are generally two forms for the restriction of power, one is substantive control, that is, through a reasonable power structure system or constitutional system to achieve the control of power, the other is procedural control. It is a trend of the modern country ruled by law to focus on the restriction of authority and responsibility, that is to say, the entity controls the power, to pay more attention to the change of the tendency of the procedural restriction, which is the main trend of the power restriction mechanism of the modern country ruled by law. The principle of due process is the essence of the right of procedural control. It originated in England, but it was the United States that really carried it forward and spread it to the world. It divides due process of law into procedural and substantive, in which procedural due process of law reviews the procedure followed by the Government in the commission of acts of deprivation of life, liberty or property, However, the substantive and due process of law involves the rationality of the contents of government policies and decrees. Traditionally speaking, our country is a typical country ruled by morality. For a long time, entity truthism has been dominating in the judicature. It is closely related to the traditional values and legal culture formed by feudal society in China for thousands of years. In addition, since modern times, our country has implemented the development model of the rule of law promoted by the government. Although it has achieved fruitful results, it has also brought some drawbacks. Its direct consequence is that the public power is too strong. The relationship between state power and civil rights is unbalanced, the concept of worshiping power is extremely strong, and it is far from enough to protect the individual rights of citizens in terms of both breadth and intensity. Therefore, it is very important to construct the program control mode with Chinese characteristics in our country, and to exert the function and function of procedure in controlling power. The procedural control right shines with the western tradition and spirit of rule of law, which embodies the ultimate concern for human dignity, right and value, and is an important achievement of the civilization of human rule of law. The development achievements and experiences of western countries in the aspect of controlling the right of procedure are of great significance to the construction of a socialist country ruled by law. The path of procedural control in our country can be explored from the following aspects: first, establishing the concept of procedural control is the premise of realizing procedural control; secondly, introducing the principle of due process into the constitution is the basis of establishing procedural control. Perfecting the existing legal system and rules of procedure is the guarantee to realize the right of procedural control. Finally, strengthening the protection of individual rights is the core of realizing the right of procedural control.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D920.0

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