形式法治与实质法治及其关系研究

发布时间：2018-06-14 23:07

本文选题：法治 + 形式法治　；参考：《辽宁师范大学》2012年硕士论文

【摘要】：法治是一个十分重要的，但却在法学发展历史上众说纷纭的基本概念，在分析法治时，可以将法治分为形式法治与实质法治两个方面，形式法治注重法治的形式主义和工具性意义，认为法治必须凸显其外在的规则性，重视法律的经验性、实证性。形式法治表现为法律对社会的统治，而非人的任意性统治，从实证的角度上表明法治是一种“规则之治”，只要法律得到严格的实施，就是法治。所谓的“恶法亦法”就是形式法治的一种极端表达。实质法治则着眼于法的伦理性内容及法的价值追求，它认为社会所需要的法治必为良法之治，绝非恶法，因此，法治的建设不能仅仅符合相关的法律形式要件，而且要使法律制度可以有效地制约权力和保障权利。它立足于社会的宏观理想角度上，来确证“良法之治”才是真正的法治。所谓的“恶法非法”就是实质法治的一种具体说法。形式法治与实质法治既有区别又有联系，是对立统一的关系。具体表现在：一方面，法治需要法律以稳定、明确的法条加以支持，据此来组织和安排人们的日常生活；另一方面，法治又需要法律在调整人们生活的同时，具有一定的价值性与理想追求，以此来适应社会中不断变化的进步观念。本论文由引言和五部分正文构成。第一部分，主要对法治概念的展开历史考察，对古今中外各个时期的学者关于法治概念的界定进行比较。其次通过法治与其他相关概念的逻辑关系比较分析，提出本文的关于法治的定义。第二部分，主要对形式法治概念及特征进行分析。对形式法治的概念进行阐述，进一步分析形式法治的特征。第三部分，主要对实质法治理论进行分析。从实质法治的概念入手，进一步分析实质法治的主要特征。第四部分，主要研究形式法治与实质法治的关系，从区别与联系入手，进而得出形式法治与实质法治是辩证统一的关系。实质法治决定形式法治，形式法治制约着实质法治。第五部分，，主要论述形式法治与实质法治的辩证统一的关系对我国法治建设的启示。
[Abstract]:The rule of law is a very important basic concept in the history of the development of law. In the analysis of the rule of law, the rule of law can be divided into two aspects: formal rule of law and substantive rule of law. The formal rule of law emphasizes the formalism and instrumental significance of the rule of law, and holds that the rule of law must highlight its external regularity, and attach importance to the empirical and empirical nature of the law. The formal rule of law is the rule of law over society, but not the arbitrary rule of man. From the perspective of empirical evidence, it shows that the rule of law is a kind of "rule of law", as long as the law is strictly implemented, it is the rule of law. The so-called draconian law is an extreme expression of formal rule of law. The essence of the rule of law is focused on the ethical content of the law and the pursuit of the value of the law. It holds that the rule of law that the society needs must be the governance of good law, not draconian law. Therefore, the construction of the rule of law cannot only conform to the relevant elements of the form of law. And to make the legal system can effectively restrict power and protect rights. It is based on the macro ideal of society to confirm that the rule of law is the true rule of law. The so-called "draconian law illegal" is a concrete statement of the substantive rule of law. The formal rule of law and the substantive rule of law are both different and related, and are the unity of opposites. On the one hand, the rule of law needs to be supported by a stable and clear law to organize and organize people's daily lives; on the other hand, the rule of law requires the law to adjust people's lives at the same time. With certain value and ideal pursuit, to adapt to the changing concept of progress in society. This paper is composed of introduction and five parts of text. In the first part, the author makes a historical investigation of the concept of rule of law, and compares the definitions of the concept of rule of law between Chinese and foreign scholars. Secondly, the definition of the rule of law is put forward through the comparative analysis of the logical relationship between the rule of law and other related concepts. The second part, mainly carries on the analysis to the form rule of law concept and the characteristic. The concept of formal rule of law is expounded, and the characteristics of formal rule of law are further analyzed. The third part, mainly carries on the analysis to the substantial rule of law theory. Starting with the concept of substantive rule of law, this paper further analyzes the main characteristics of substantive rule of law. The fourth part mainly studies the relationship between the formal rule of law and the substantive rule of law, starting with the distinction and connection, and then comes to the conclusion that the formal rule of law and the substantive rule of law are dialectical and unified. The substantive rule of law determines the formal rule of law, and the formal rule of law restricts the substantive rule of law. The fifth part mainly discusses the relationship between formal rule of law and substantive rule of law.
【学位授予单位】：辽宁师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.0

【参考文献】