论美国对外贸易法治建设的成就与不足
发布时间：2018-07-21 19:00
【摘要】：自欧洲移民把法治理念带进北美开始,经过独立战争的传承发展,宪法至上与三权分立已成为美国自上而下的法律信仰,并体现在对外贸易领域从立法到执法再到守法这一连贯机制的法治成就上。美国对外贸易法的制度与实践直接影响着全球经济及全球贸易制度的内容及其发展,具有重要的法治意义。就立法阶段而言,美国对外贸易立法权的授予具有宪政基础,立法权的行使程序具有明确的法律依据,立法形式科学、内容完备。但由于近年来为了在国际上维护霸权地位和受国内政治与利益集团的制约,美国将贸易法作为政治工具推行单边主义,削弱了外贸立法的法治优势。就执法阶段而言,美国对外贸易执行机构职责明确,权力分工相互制约,执法程序完备且具正当性,有利于美国外贸执法法治的实现。同时基于经济复兴的需要,美国外贸执法中也存在滥用自由裁量、司法审查受局限、执法主体法治素质差异大等漏洞。就守法阶段而言,法律赋予的外贸各方当事人平等诉讼权,以及各种守法促进制度,是外贸守法法治建设的重要成就,同时也存在诸如模糊性规则和霸权性条款,以及有差别的守法主体法定权利义务等违背公平平等原则的现象。相较美国外贸法治建设的成就与不足,我国外贸领域存在诸多问题,可以通过借鉴美国经验,完善对外贸易立法制度,强化对外贸易执法法治建设,培育对外贸易守法机制的社会根基,以努力完善我国的外贸法制与实现我国外贸法治秩序。
[Abstract]:Since European immigrants brought the concept of the rule of law into North America, through the inheritance and development of the War of Independence, constitutional supremacy and separation of powers have become the top-down legal beliefs of the United States. And embodies in the foreign trade field from the legislation to the law enforcement to the law-abiding this consistent mechanism's rule of law achievement. The system and practice of American foreign trade law directly affect the content and development of global economy and global trade system. As far as the legislative stage is concerned, the granting of the legislative power of foreign trade in the United States has constitutional foundation, the procedure of exercising the legislative power has a clear legal basis, the form of legislation is scientific and the content is complete. However, in recent years, in order to maintain the hegemonic position in the world and be restricted by domestic politics and interest groups, the United States uses trade law as a political tool to promote unilateralism, which weakens the advantage of rule of law in foreign trade legislation. In the law enforcement stage, American foreign trade enforcement agencies have clear responsibilities, the division of power restricts each other, and the law enforcement procedures are complete and legitimate, which is conducive to the realization of the rule of law in foreign trade law enforcement in the United States. At the same time, due to the need of economic rejuvenation, there are also loopholes in American foreign trade law enforcement, such as abuse of discretion, limited judicial review and wide differences in the quality of the law enforcement subject. As far as the law-abiding stage is concerned, the equal right of litigation granted by the law to the parties to foreign trade, as well as all kinds of law-abiding promotion systems, are important achievements in the construction of law-abiding rule of law in foreign trade. At the same time, there are also vague rules and hegemonic provisions. And the legal rights and obligations of different law-abiding subjects and other violations of the principle of equality. Compared with the achievements and deficiencies in the construction of the rule of law in foreign trade in the United States, there are many problems in the field of foreign trade in China. To cultivate the social foundation of the law-abiding mechanism of foreign trade in order to perfect the legal system of foreign trade and realize the order of the rule of law in China's foreign trade.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2;DD912.29
[Abstract]:Since European immigrants brought the concept of the rule of law into North America, through the inheritance and development of the War of Independence, constitutional supremacy and separation of powers have become the top-down legal beliefs of the United States. And embodies in the foreign trade field from the legislation to the law enforcement to the law-abiding this consistent mechanism's rule of law achievement. The system and practice of American foreign trade law directly affect the content and development of global economy and global trade system. As far as the legislative stage is concerned, the granting of the legislative power of foreign trade in the United States has constitutional foundation, the procedure of exercising the legislative power has a clear legal basis, the form of legislation is scientific and the content is complete. However, in recent years, in order to maintain the hegemonic position in the world and be restricted by domestic politics and interest groups, the United States uses trade law as a political tool to promote unilateralism, which weakens the advantage of rule of law in foreign trade legislation. In the law enforcement stage, American foreign trade enforcement agencies have clear responsibilities, the division of power restricts each other, and the law enforcement procedures are complete and legitimate, which is conducive to the realization of the rule of law in foreign trade law enforcement in the United States. At the same time, due to the need of economic rejuvenation, there are also loopholes in American foreign trade law enforcement, such as abuse of discretion, limited judicial review and wide differences in the quality of the law enforcement subject. As far as the law-abiding stage is concerned, the equal right of litigation granted by the law to the parties to foreign trade, as well as all kinds of law-abiding promotion systems, are important achievements in the construction of law-abiding rule of law in foreign trade. At the same time, there are also vague rules and hegemonic provisions. And the legal rights and obligations of different law-abiding subjects and other violations of the principle of equality. Compared with the achievements and deficiencies in the construction of the rule of law in foreign trade in the United States, there are many problems in the field of foreign trade in China. To cultivate the social foundation of the law-abiding mechanism of foreign trade in order to perfect the legal system of foreign trade and realize the order of the rule of law in China's foreign trade.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2;DD912.29
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