程序正义与中国法治

发布时间：2018-06-22 22:22

本文选题：程序正义发 + 法治　；参考：《北方工业大学》2012年硕士论文

【摘要】：“程序正义”作为一种理性的法律理念,在西方国家渊源颇深,并为现代法治国家所普遍吸纳。程序正义是处理现代多元社会公共关系的基本形式,是现代法治的核心内容。中国在向法治国家的迈进的过程中必然要经历一系列的变革,而坚持程序正义对清除我国重实体、轻程序的传统心理,建设法治国家有着深远的意义,它是我国实现法治的必由之路。本文从程序正义理论入手,强调中国法治的建设路途。中国目前法制基本完备,但实际运作却不容乐观,其中最重要的表现就是“程序正义问题”。虽然法治的成败与法的实质内容有关,但是实现法治必然需要通过一定的运作过程,即使是良法,也依赖于其实施的方法—程序。因此,法的实施应当严格依照程序,严格的程序正义是实现法治的基础。与西方相比,中国在此方面还存在很大差距。中国的传统法律秩序是建立在绝对皇权和宗法伦理的基础之上,强调人与人之间的不平等。在大家长制的社会形态下,整个社会处在一元化思想的主导,政府独大,民众赢弱,政府享有高于一切社会主体的特权。在这种环境下,外在的监督是不必要的,通过正当程序的监督是多此一举的,是束缚自我手脚的做法。所以,长期以来我国社会一直强调重内容、轻程序,并未认识到个体权利和自由的价值,中国社会也普遍缺乏程序意识。毋庸置疑,我国的民主和法治建设仍有相当长的路要走,程序正义理念的传播和实践仍面临着很多问题和阻力。我国法学界对程序正义理念的认识还存在严重分歧,学者对程序正义理论的研究还存有缺陷,社会民众的程序观念还十分淡薄,对程序正义还不够关注,因此必须进一步研究此问题。
[Abstract]:As a rational legal concept, procedural justice has deep roots in western countries and is widely accepted by modern countries ruled by law. Procedural justice is the basic form of dealing with modern pluralistic social public relations and the core content of modern rule of law. China is bound to undergo a series of changes in the process of moving towards a country ruled by law, and upholding procedural justice is of far-reaching significance to the removal of the traditional psychology of our country, which places more emphasis on substance than procedure, and the construction of a country ruled by law. It is the only way to realize the rule of law in our country. Starting with the theory of procedural justice, this paper emphasizes the road to the construction of Chinese rule of law. At present, China's legal system is basically complete, but its actual operation is not optimistic, the most important manifestation of which is "procedural justice". Although the success or failure of the rule of law is related to the substance of the law, the realization of the rule of law must go through a certain operation process, even good law, but also rely on its implementation method-procedure. Therefore, the enforcement of law should be strictly in accordance with procedures, strict procedural justice is the basis for the realization of the rule of law. Compared with the West, China still has a big gap in this respect. China's traditional legal order is based on absolute imperial power and patriarchal ethics, emphasizing the inequality between people. Under the social form of patriarchal system, the whole society is dominated by the idea of monism, the government is dominant, the people win and the weak, and the government enjoys the privilege of being superior to all social subjects. In this environment, the external supervision is unnecessary, through due process supervision is unnecessary, is the restraint self hands and feet practice. Therefore, for a long time, the society of our country has been emphasizing the content, neglecting the procedure, not realizing the value of individual rights and freedoms, and the Chinese society also lacks the consciousness of procedure generally. There is no doubt that the construction of democracy and rule of law in China still has a long way to go, and the spread and practice of the concept of procedural justice still faces many problems and obstacles. There are still serious differences in the understanding of the concept of procedural justice in the legal circles of our country. Scholars still have defects in the study of the theory of procedural justice, and the concept of procedure of the social public is still very weak, and they do not pay enough attention to procedural justice. Therefore, it is necessary to further study this problem.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.0

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