论传统法治资源与法治现代化

发布时间：2018-06-15 09:36

本文选题：传统法治资源 + 现代法治资源　；参考：《辽宁师范大学》2012年硕士论文

【摘要】：传统法治资源与法治现代化这一论题可谓是经久不衰，只要一国进行本国法律的更新与发展，则必然会面如何进行本国法治现代化的问题。我国作为后现代化的国家，为保障经济、政治、文化与社会等各方面的发展能有良好的秩序，尤其是十七大将“依法治国”的精神纳入我国的宪法之后，在“法治宪法”的指引下，我们对于法治社会的建设更加是刻不容缓的。在进行法治现代化的过程中所必须采用的手段之中，我们往往比较倾向于利用法律移植的手段来实现我国法治的更新。与此同时，在我们进行法律移植的过程中，不得不去面对法的共性与个性的矛盾处理问题——传统法治资源与法治现代化之间的矛盾处理。令人遗憾的是，翻阅我国的诸多论文，不论是期刊杂志还是学术书籍，大都只着眼于法制现代化，即只是看到了西方的形式法制的繁荣，着眼点只在于理论上的法制，希望通过法制的更新来实现我国的法治现代化。然这种没有突出强调法治的现代化精神的片面化的观点，非但会使我们研究的方向迷失，更会对我国的法治现代化形成理论上的阻碍。我们的法治建设不仅仅要放在制度层面，应该注重的是对实质法治的精神理论等深层次的探究而绝不可以仅对形式法治进行观赏临摹。本文基于此目的，分别对传统法治资源与法治的现代化的内涵进行了界定，，并对二者之间的矛盾产生的原因、对立的表现以及后果进行了阐述，并通过论述传统法治资源与法治现代化之间矛盾解决的具体步骤来提出将其糅合的具体方法。并在此基础上提出了新的法治概念——法治创新。强调只有通过结合本国的具体国情，在法治继承与法治移植的基础上依靠本国的法治力量来实现自己独特法治的途径才是解决二者之间矛盾的立足点，也只有法治创新才更符合我国目前法治现代化的精神需求，也才更符合我国经济法治、政治法治与文化法治的时代性的要求。只有强调法治的现代化，我们的法治才能与时俱进，从而实现我国的法治水平飞速的质变。最后，希望以此理论可以丰富我国的法治现代化理论，并希望为我国的法治现代化建设添砖加瓦。
[Abstract]:The traditional rule of law resources and the modernization of the rule of law can be described as enduring. As long as a country carries out the renewal and development of its own laws, it will inevitably meet the question of how to modernize its own rule of law. As a post-modern country, in order to ensure good order in the development of economy, politics, culture and society, especially after the 17th National Congress brought the spirit of "governing the country according to law" into the Constitution of our country, Under the guidance of the Constitution of the Rule of Law, it is urgent for us to build a society ruled by law. In the process of modernization of the rule of law, we tend to use the means of law transplantation to realize the renewal of the rule of law in our country. At the same time, in the course of our legal transplantation, we have to deal with the contradiction between the commonness and individuality of law-the contradiction between the traditional legal resources and the modernization of the rule of law. It is regrettable that most of the papers in our country, whether periodicals, magazines or academic books, are focused on the modernization of the legal system, that is, they only see the prosperity of the formal legal system in the West, and the focus is only on the legal system in theory. It is hoped that the modernization of the rule of law will be realized through the renewal of the legal system. However, the one-sided view which does not emphasize the modernization spirit of the rule of law will not only lead to the loss of the direction of our research, but also form a theoretical obstacle to the modernization of the rule of law in our country. Our construction of the rule of law should not only be placed in the system level, should pay attention to the essence of the spiritual theory of the rule of law and other deep-seated exploration, but not just the form of the rule of law can be viewed and copied. Based on this purpose, this paper defines the connotation of the traditional legal resources and the modernization of the rule of law, and expounds the causes, manifestations and consequences of the contradiction between the two. Through discussing the concrete steps to resolve the contradiction between the traditional legal resources and the modernization of the rule of law, the paper puts forward the concrete method of blending them. And on this basis, put forward a new concept of rule of law-rule of law innovation. Emphasizing that the only way to achieve their own unique rule of law on the basis of the inheritance of the rule of law and the transplantation of the rule of law on the basis of their own specific national conditions is to achieve their own unique approach to the rule of law, which is the foothold for resolving the contradiction between the two, Only the innovation of the rule of law is more in line with the spiritual needs of the modernization of the rule of law at present in our country, and also more in line with the requirements of the times of the rule of law in economy, politics and culture. Only by emphasizing the modernization of the rule of law, our rule of law can keep pace with the times and realize the rapid qualitative change of the level of our country's rule of law. Finally, it is hoped that this theory can enrich the modernization theory of our country's rule of law and contribute to the modernization of our country's 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

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