私人执法的法理分析及其法律规制

发布时间：2018-03-19 03:37

本文选题：私人执法　切入点：公共执法　出处：《西北师范大学》2010年硕士论文　论文类型：学位论文

【摘要】：由于基于公共监控的公共执法系统的缺陷和基于私人监控的私人执法的不规范运行(当然还有其他原因),我国的法律在运行过程中屡屡受挫,法律的自我实现能力较弱,有待进一步完善。而本文试图论证在相关领域引入和规范私人执法,建立私人执法与公共执法的互动机制将在某种意义上提高法律的自我实现效果。本文一章首先对私人执法进行深层次的法理学剖析,应用文献分析的方法阅读了有关法律实施相关理论,在借鉴前人作品的基础上,通过对国内外学术界关于私人执法的研究进行文本分析,依据我国具体的实际,总结出自己对私人执法的含义的理解,认为私人执法是指个人、组织或某种社会力量依据国家法律、民间习惯法或习惯性规则对违法或违规行为进行私人监控、调查,并据此对该违法或违规行为进行惩罚或提起诉讼的行为。分析了私人执法的特征。并按照不同的标准将私人执法分成合法性私人执法和非法性私人执法(执法错误)以及个人执法、组织执法和社会力量执法。对私人执法与相关概念进行了比较分析。设置了私人执法界限的五大原则:私人执法行为必须坚持合法权益不得损害原则、公序良俗不得违背原则、符合经济效益原则、适当性原则和必要性原则。这些原则的设定,为私人执法错误的治理奠定了理论依据。本文的第二章以社会契约论为核心解说性视角,以法律执行的效率性和公正性、公共执法的滞后性、被动性和有限性为切入点,从契约论、人性论和意思自治理论三个方面来论述私人执法的正当性。本文的第三章应用经济学的方法和法人类学的方法对公共执法与私人执法进行了情景性比较,认为公共执法存在着功能上的局限性和逻辑上的局限性;通过对公共执法的执法成本和执法效率的分析,认为公共执法在一定程度上存在着高成本、低效率的现象;公共执法还面临着人文环境的缺失与公共执法的信任危机。并分析了私人执法的比较优势,认为私人执法可以减少执法成本、私人执法直接、高效、便捷且私人执法有利于执法资源的高效率配置。本文的最后一章则是对私人执法的理论构建,通过对公共执法的私人化趋势的透视,认为在公共执法私人化的全球化趋势中,在部分法律执行机制中有选择地引入私人执法机制,引导、规范私人执法,充分利用私人执法的积极功能,以促进公共执法机制的改革和完善,促进和完善法律的自我实现机制,以保障广大公民的合法权益。并在分析私人执法的理论基础、必要性和界定私人执法的法律适用范围及其适用方式的基础上,本文提出要鼓励与引导私人监督以实现通过私人监控的社会控制、建立公共执法与私人执法的互动机制并探析执法错误的深层次原因并据此提出治理的方法。
[Abstract]:Due to the defects of the public law enforcement system based on the public monitoring and the irregular operation of the private law enforcement based on the private monitoring (there are other reasons, of course, the law of our country is often frustrated in the course of operation, the ability of self-realization of the law is relatively weak. This paper attempts to demonstrate that the introduction and regulation of private law enforcement in relevant fields and the establishment of an interactive mechanism between private law enforcement and public law enforcement will improve the self-realization effect of law in a certain sense. In the first chapter of this paper, the author makes a deep analysis of private law enforcement, and uses the method of literature analysis to read the relevant theories on the implementation of the law, on the basis of drawing lessons from the previous works. Through the text analysis of the research on private law enforcement in the academic circles at home and abroad, and according to the concrete reality of our country, the author summarizes his own understanding of the meaning of private law enforcement, and thinks that private law enforcement refers to the individual. The organization or some social force carries on the private surveillance and investigation to the violation of the law or the violation according to the national law, the folk custom law or the customary rule, The characteristics of private law enforcement are analyzed, and private law enforcement is divided into lawful private law enforcement and illegal private law enforcement according to different standards. And personal law enforcement, This paper makes a comparative analysis of private law enforcement and related concepts. It sets up five major principles of private law enforcement: private law enforcement must adhere to the principle of lawful rights and interests must not be damaged, and public order and good customs must not violate the principle. These principles are in line with the principles of economic benefit, appropriateness and necessity. These principles have laid a theoretical foundation for the management of private law enforcement errors. The second chapter takes the social contract theory as the core explanation angle, the efficiency and fairness of the law enforcement, the lag, passivity and finiteness of public law enforcement as the breakthrough point, from the contract theory. The theory of human nature and the theory of will autonomy to discuss the legitimacy of private law enforcement. The third chapter compares public law enforcement with private law enforcement by using the methods of economics and legal anthropology, and concludes that public law enforcement has some limitations in function and logic. Based on the analysis of the cost and efficiency of public law enforcement, it is concluded that there is a phenomenon of high cost and low efficiency in public law enforcement to a certain extent. Public law enforcement also faces a lack of humanistic environment and a crisis of trust in public law enforcement. The comparative advantages of private law enforcement are analyzed, and it is concluded that private law enforcement can reduce the cost of law enforcement, and private law enforcement is direct and efficient. Convenient and private law enforcement is conducive to the efficient allocation of law enforcement resources. The last chapter of this paper is the theoretical construction of private law enforcement, through the perspective of the private trend of public law enforcement, the author thinks that in the globalization trend of private public law enforcement, In order to promote the reform and improvement of the public law enforcement mechanism, the private law enforcement mechanism is selectively introduced into some law enforcement mechanisms, leading and standardizing private law enforcement, making full use of the positive functions of private law enforcement, and promoting the reform and improvement of the public law enforcement mechanism. To promote and perfect the self-realization mechanism of law in order to protect the legitimate rights and interests of the majority of citizens, and on the basis of analyzing the theoretical basis of private law enforcement, the necessity and the definition of the scope of application of private law enforcement and its applicable ways, This paper proposes to encourage and guide private supervision to realize social control through private supervision, to establish an interactive mechanism between public law enforcement and private law enforcement, and to probe into the deep-seated causes of law enforcement errors and to put forward the methods of governance accordingly.
【学位授予单位】：西北师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90

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