集体维权的法理学分析
发布时间：2018-08-21 09:22
【摘要】：在中国社会变迁过程中,大规模、频繁的集体维权的发生是政治、经济、文化等多种因素综合作用的结果,其中主要与中国政治权力的现状紧密相关。一方面中国全能型政府还没有完成向服务型政府的转型,政治权力运行不当使民众权益受到侵犯,当民众缺乏有效的、可行的制度化救济渠道维护自己的权益时,非制度化集体维权的发生就具有了初步可能性。另一方面中国不断推进的政治体制改革为集体维权的发生提供了公共空间,在这个空间内,集体维权的发生具有了可行性和成功的可能性。同时,集体维权的发生也表明随着中国政治、经济、文化和社会的发展,人们要求参与公共事务,力图以社会权力控制国家权力,进而实现和保障公民权利的一种意愿和期待。 当前的集体维权是在承认现有政体的政治合法性前提下发生的,它是公民以集会、游行、示威、静坐、集体上访等方式维护自身正当权益的法律行为,是公民宪法权利的行使和基本人权的实现,具有合法性和合理性,并具有释放社会压力、增强公民主体意识和促进民主法治建设等功能。 就现阶段集体维权的发生来看,利益可以说是它的根本动力。当民众利益受损却不能通过制度化的渠道满足他们的要求时,经由利益衡量,他们就可能采取非制度化集体维权的方式来实现利益最大化。面对非制度化的集体维权方式,政府无论是作为抗争对象还是作为调解者,从实际情况来看,多数的处理结果并没有兼顾到与公民集体维权相关的制度利益,反而是淡化甚至损害了制度利益,由此衍生出一个可能的后果就是增强了公民非制度性和非程序性解决问题的意识。 如果说利益是集体维权发生和发展的根本动力的话,那么对于在利益基础上作出价值选择的主体来说,价值上的差异和冲突是促使集体维权发生的观念层面的动因,因为人的自由而全面的发展以及人们对幸福的追求,除了关切物质或经济利益外,对自我价值的实现更为关注。正是人们与政府对安全与效率、公正与效率、自由与秩序以及在法治价值认知上存在的差异和冲突,在观念和意识层面上使集体维权的发生和发展具有了可能性。集体维权所表现出来的公众与政府之间的这些价值差异和冲突会影响人们的政治认同,并对政体的政治合法性造成冲击。因此,寻求以政府自律为前提,以公民社会为基础,以公共领域为媒介,以协商沟通为形式,以民主法治为保障等方面相结合的方式,弥合价值差异,形成基本价值共识,对应对集体维权以及重塑政府政治权威就具有重要的现实意义。 在中国现有的政治社会环境中,无论是利益冲突还是价值认知上的差异,人民群众不能完全有效行使和控制政治权力是造成当前现状的主要根源,这也决定了集体维权不仅是个民生问题,而且是一个民主问题。集体维权虽然以经济权益为其直接诉求,但是他们的维权行为却蕴含着对权力的限制、对规则平等对待和对参与公共事务的追求。在一定意义上,它是公民主体意识和权利意识觉醒的表现。通过集体维权,民众在参与过程中受到民主和法治的教育,政府学会倾听和妥协,由此,共同形塑了集体维权制度化和法治化的政治基础。 集体维权的发生固然是由于民主法治的发展为其创造了一定的公共空间,但它的发生也折射出中国法治现实和法治价值之间的矛盾,这也是它以一种非制度化的方式存在的重要原因。对于集体维权的非制度化存在,从对社会秩序的维护、维权效率的保证以及公民程序意识的培养来看,都有将其予以法治化规范的必要性和现实性。集体维权的法治化是一个系统性工程,需要在市场经济、民主政治和公民社会发展的基础上,从加强和完善立法、严格公正执法与司法、提高法治意识等方面着手,逐步实现集体维权的法治化规范。
[Abstract]:In the process of social change in China, large-scale and frequent collective rights protection is the result of a combination of political, economic, cultural and other factors, which is closely related to the status quo of China's political power. On the other hand, China's constantly advancing political system reform provides a public space for the occurrence of collective rights protection. In this space, the occurrence of collective rights protection has its own characteristics. At the same time, the occurrence of collective rights protection also shows that with the development of China's politics, economy, culture and society, people are demanding to participate in public affairs, trying to control state power with social power, and then realize and protect the civil rights of a will and expectation.
The current collective protection of rights takes place on the premise of recognizing the political legitimacy of the existing regime. It is the legal act of citizens to safeguard their legitimate rights and interests by means of assembly, procession, demonstration, sit-in and collective petition. It is the exercise of citizens'constitutional rights and the realization of basic human rights. It is legitimate and reasonable, and has the release of social pressure. Enhancing citizen's subjective consciousness and promoting the construction of democracy and rule of law.
When people's interests are damaged but can't meet their demands through institutionalized channels, they may adopt the way of non-institutionalized collective rights protection to maximize their interests. Regardless of whether the government is the object of protest or the mediator, from the actual situation, the majority of the treatment results do not take into account the interests of the system related to the collective protection of citizens'rights, but weaken or even damage the interests of the system, thus resulting in a possible consequence is to enhance citizens' non-institutional and non-procedural solution to the problem. Consciousness.
If interest is the fundamental driving force for the occurrence and development of collective rights, then for the subjects who make value choices on the basis of interest, the differences and conflicts in value are the conceptual motivation for the occurrence of collective rights, because the free and comprehensive development of human beings and people's pursuit of happiness, in addition to material concerns or the pursuit of happiness. It is precisely the differences and conflicts between people and the government in security and efficiency, justice and efficiency, freedom and order, and in the cognition of the value of the rule of law that make it possible for the occurrence and development of collective protection of rights on the conceptual and ideological level. These value differences and conflicts between governments will affect people's political identity and impact on the political legitimacy of the regime. Therefore, we should seek to bridge the value differences by combining government self-discipline as the premise, civil society as the basis, public sphere as the medium, consultation and communication as the form, democracy and the rule of law as the guarantee, etc. It is of great practical significance to form a consensus of basic values in dealing with collective rights and rebuilding the political authority of the government.
In China's current political and social environment, whether in conflict of interests or differences in value perception, the people's inability to exercise and control political power fully and effectively is the main source of the current situation, which also determines that collective protection of rights is not only a livelihood issue, but also a democratic issue. In a sense, it is a manifestation of the awakening of citizen's subjective consciousness and right consciousness. Through collective rights protection, people are educated in the process of participation by democracy and the rule of law, and the government learns to listen. And compromise, thus forming the political foundation of institutionalization and legalization of collective rights protection.
Although collective rights protection is due to the development of democracy and the rule of law, it also reflects the contradiction between the reality of the rule of law and the value of the rule of law in China, which is also an important reason for its existence in a non-institutionalized way. It is necessary and realistic to standardize the rule of law in the protection and protection of human rights and in the cultivation of citizens'procedural awareness. The rule of law in collective protection of human rights is a systematic project, which needs to be improved on the basis of the development of market economy, democratic politics and civil society. From the perspective of rule of law, we should gradually realize the rule of law of collective rights protection.
【学位授予单位】：中共中央党校
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D920.0
本文编号：2195274
[Abstract]:In the process of social change in China, large-scale and frequent collective rights protection is the result of a combination of political, economic, cultural and other factors, which is closely related to the status quo of China's political power. On the other hand, China's constantly advancing political system reform provides a public space for the occurrence of collective rights protection. In this space, the occurrence of collective rights protection has its own characteristics. At the same time, the occurrence of collective rights protection also shows that with the development of China's politics, economy, culture and society, people are demanding to participate in public affairs, trying to control state power with social power, and then realize and protect the civil rights of a will and expectation.
The current collective protection of rights takes place on the premise of recognizing the political legitimacy of the existing regime. It is the legal act of citizens to safeguard their legitimate rights and interests by means of assembly, procession, demonstration, sit-in and collective petition. It is the exercise of citizens'constitutional rights and the realization of basic human rights. It is legitimate and reasonable, and has the release of social pressure. Enhancing citizen's subjective consciousness and promoting the construction of democracy and rule of law.
When people's interests are damaged but can't meet their demands through institutionalized channels, they may adopt the way of non-institutionalized collective rights protection to maximize their interests. Regardless of whether the government is the object of protest or the mediator, from the actual situation, the majority of the treatment results do not take into account the interests of the system related to the collective protection of citizens'rights, but weaken or even damage the interests of the system, thus resulting in a possible consequence is to enhance citizens' non-institutional and non-procedural solution to the problem. Consciousness.
If interest is the fundamental driving force for the occurrence and development of collective rights, then for the subjects who make value choices on the basis of interest, the differences and conflicts in value are the conceptual motivation for the occurrence of collective rights, because the free and comprehensive development of human beings and people's pursuit of happiness, in addition to material concerns or the pursuit of happiness. It is precisely the differences and conflicts between people and the government in security and efficiency, justice and efficiency, freedom and order, and in the cognition of the value of the rule of law that make it possible for the occurrence and development of collective protection of rights on the conceptual and ideological level. These value differences and conflicts between governments will affect people's political identity and impact on the political legitimacy of the regime. Therefore, we should seek to bridge the value differences by combining government self-discipline as the premise, civil society as the basis, public sphere as the medium, consultation and communication as the form, democracy and the rule of law as the guarantee, etc. It is of great practical significance to form a consensus of basic values in dealing with collective rights and rebuilding the political authority of the government.
In China's current political and social environment, whether in conflict of interests or differences in value perception, the people's inability to exercise and control political power fully and effectively is the main source of the current situation, which also determines that collective protection of rights is not only a livelihood issue, but also a democratic issue. In a sense, it is a manifestation of the awakening of citizen's subjective consciousness and right consciousness. Through collective rights protection, people are educated in the process of participation by democracy and the rule of law, and the government learns to listen. And compromise, thus forming the political foundation of institutionalization and legalization of collective rights protection.
Although collective rights protection is due to the development of democracy and the rule of law, it also reflects the contradiction between the reality of the rule of law and the value of the rule of law in China, which is also an important reason for its existence in a non-institutionalized way. It is necessary and realistic to standardize the rule of law in the protection and protection of human rights and in the cultivation of citizens'procedural awareness. The rule of law in collective protection of human rights is a systematic project, which needs to be improved on the basis of the development of market economy, democratic politics and civil society. From the perspective of rule of law, we should gradually realize the rule of law of collective rights protection.
【学位授予单位】：中共中央党校
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D920.0
【参考文献】
相关期刊论文 前10条
1 胡玉鸿;;社会契约与人的联合[J];比较法研究;2007年03期
2 胡玉鸿;;结社自由与人的联合[J];长春市委党校学报;2007年02期
3 陈晓丹;;中国民主政治模式的制度要素论析[J];东北师大学报(哲学社会科学版);2010年03期
4 于建嵘;;中国的社会泄愤事件与管治困境[J];当代世界与社会主义;2008年01期
5 王锡锌;;利益组织化、公众参与和个体权利保障[J];东方法学;2008年04期
6 马岭;宪法性法律的性质界定[J];法律科学.西北政法学院学报;2005年01期
7 胡玉鸿;;“集体行动”与“人的联合”──以集会、游行为核心的分析[J];法律科学(西北政法学院学报);2007年01期
8 陈伦恩;;浅谈我州群体性事件的特点、成因及预防与处置[J];恩施州党校学报;2005年01期
9 李琦;作为人权的联合行动权[J];法商研究;2003年05期
10 王锡锌;;当代行政的“民主赤字”及其克服[J];法商研究;2009年01期
相关重要报纸文章 前1条
1 张志明;[N];学习时报;2010年
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