互联网上私力救济成因及规制
发布时间：2018-11-21 19:41
【摘要】：互联网上私力救济大量涌现,“上访不如上网”,“找警察不如找天涯”等权利救济理念广泛流传,引起笔者的关注与思索。在公力救济处于核心和垄断地位的社会,私力救济很容易触犯法律,是刀锋上的舞者,甚至被指责为“边缘性现象——落后、不文明、应予抑制和抛弃”1,似乎其不应该成为重要的、流行的权利救济手段。在这种情况下,互联网上私力救济大行其道的原因何在,应如何评价这种现象,这些问题值得探讨。 本文以互联网上私力救济现象为研究对象,对该现象进行考察,分析互联网上私力救济的特点、产生的原因。相比现实中的私力救济,互联网上私力救济的“力”具有特殊性,具有自身特有的模式,介入力量更复杂、更难控制,私力的获取更为便利,威力更为巨大,同时社会危害性更大。私力救济大量存在有诸多原因,具体表现在,社会转型时期公力权利救济渠道不畅,互联网提供了权利救济的新平台,公民媒介素养提高及权利意识觉醒,互联网领域立法不完善等等。 对互联网上私力救济应该客观的评价。一方面,互联网上私力救济具有积极作用,它是公民对媒介传播权的利用,有助于公民维权,有利于多元化纠纷解决机制构建。另一方面,互联网上私力救济的效果被过高期待,网络舆论的力量被过度神化,可能对权利救济起到不良的示范作用,同时互联网上私力救济容易产生侵权和犯罪。 通过对互联网上私力救济作出法律和价值评价,一则为公民选择权利救济方式提供判断标准。二则提出应当对互联网上私力救济进行法律规制,将其纳入到多元化的纠纷解决机制中,扬其长避其短,发挥其保障公民权益,实现权利救济的作用。笔者提出对互联网上私力限制的原则,即目的正当原则,手段正当原则,不得损害公共利益原则。同时提出具体的规制措施,从私力救济本身的立法和互联网领域立法这两个角度对互联网上私力救济进行规制,此外,应对公民进行媒介素养教育,以提高其信息的评判、接受、传播等能力,从而促进互联网上私力救济在法制化轨道上发展。本文的目的在于促进互联网上私力救济的健康发展,并对理论研究起到抛砖引玉的作用。
[Abstract]:A large number of private remedies have emerged on the Internet, such as "petition is better than Internet", "finding the police is better than looking for the horizon" and other right relief ideas have been widely circulated, which has aroused the author's attention and thinking. In a society where public relief is at the core and in a monopoly position, private relief is easy to break the law, is a dancer on the blade, and is even accused of being "marginal phenomenon-backward, uncivilized, should be suppressed and abandoned." It seems that it should not become an important, popular means of right relief. In this case, the reason why private relief is popular on the Internet, and how to evaluate this phenomenon, these problems are worth discussing. In this paper, the phenomenon of private relief on the Internet as the research object, to investigate the phenomenon, to analyze the characteristics of private relief on the Internet and the causes. Compared with the private relief in reality, the "power" of the private relief on the Internet has its own unique mode, the intervention force is more complex, more difficult to control, and the private power is more convenient and powerful. At the same time, social harm is greater. There are many reasons for the existence of private relief, which is manifested in the lack of channels of public right relief in the period of social transformation, the new platform of right relief provided by the Internet, the improvement of citizen's media literacy and the awakening of right consciousness. Internet area legislation is not perfect and so on. Private relief on the Internet should be objectively evaluated. On the one hand, private relief on the Internet plays a positive role. It is the citizen's use of the media communication right, helps citizens to protect their rights, and helps to build a pluralistic dispute resolution mechanism. On the other hand, the effect of private relief on the Internet is expected too high, and the power of network public opinion is over-deified, which may play a negative role in demonstrating the right relief. At the same time, private relief on the Internet is prone to tort and crime. By evaluating the law and value of private relief on the Internet, it provides a judgment standard for citizens to choose the right relief. Second, the private relief on the Internet should be regulated by law and brought into the pluralistic dispute resolution mechanism, so as to play the role of protecting the rights and interests of citizens and realizing the right relief. The author puts forward the principle of restricting the private power on the Internet, that is, the principle of legitimate end, the principle of legitimacy of means, and the principle of not harming the public interest. At the same time, it puts forward specific regulation measures to regulate private relief on the Internet from the angle of private relief legislation and Internet legislation. In addition, citizens should be educated in media literacy in order to improve their information evaluation. Accept, spread and so on ability, thus promotes the Internet private power relief to develop on the legal system track. The purpose of this paper is to promote the healthy development of private relief on the Internet and play an important role in theoretical research.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90
[Abstract]:A large number of private remedies have emerged on the Internet, such as "petition is better than Internet", "finding the police is better than looking for the horizon" and other right relief ideas have been widely circulated, which has aroused the author's attention and thinking. In a society where public relief is at the core and in a monopoly position, private relief is easy to break the law, is a dancer on the blade, and is even accused of being "marginal phenomenon-backward, uncivilized, should be suppressed and abandoned." It seems that it should not become an important, popular means of right relief. In this case, the reason why private relief is popular on the Internet, and how to evaluate this phenomenon, these problems are worth discussing. In this paper, the phenomenon of private relief on the Internet as the research object, to investigate the phenomenon, to analyze the characteristics of private relief on the Internet and the causes. Compared with the private relief in reality, the "power" of the private relief on the Internet has its own unique mode, the intervention force is more complex, more difficult to control, and the private power is more convenient and powerful. At the same time, social harm is greater. There are many reasons for the existence of private relief, which is manifested in the lack of channels of public right relief in the period of social transformation, the new platform of right relief provided by the Internet, the improvement of citizen's media literacy and the awakening of right consciousness. Internet area legislation is not perfect and so on. Private relief on the Internet should be objectively evaluated. On the one hand, private relief on the Internet plays a positive role. It is the citizen's use of the media communication right, helps citizens to protect their rights, and helps to build a pluralistic dispute resolution mechanism. On the other hand, the effect of private relief on the Internet is expected too high, and the power of network public opinion is over-deified, which may play a negative role in demonstrating the right relief. At the same time, private relief on the Internet is prone to tort and crime. By evaluating the law and value of private relief on the Internet, it provides a judgment standard for citizens to choose the right relief. Second, the private relief on the Internet should be regulated by law and brought into the pluralistic dispute resolution mechanism, so as to play the role of protecting the rights and interests of citizens and realizing the right relief. The author puts forward the principle of restricting the private power on the Internet, that is, the principle of legitimate end, the principle of legitimacy of means, and the principle of not harming the public interest. At the same time, it puts forward specific regulation measures to regulate private relief on the Internet from the angle of private relief legislation and Internet legislation. In addition, citizens should be educated in media literacy in order to improve their information evaluation. Accept, spread and so on ability, thus promotes the Internet private power relief to develop on the legal system track. The purpose of this paper is to promote the healthy development of private relief on the Internet and play an important role in theoretical research.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90
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