经济宪政正义原则研究
发布时间：2018-07-25 15:22
【摘要】：传统经济法以国家干预经济为重要表现特征，它与凯恩斯经济学增加有效需求以刺激经济增长的理论密切相关，故它以经济增长为目标价值取向。但如果以宪政为角度对现有的经济法进行重新审视，就可发现其价值目标应当为正义原则，经济法的形成及运行应当符合经济宪政正义原则。 经济宪政正义原则的理论形成与自然法理论、经济宪政理论、布坎南宪政经济学以及罗尔斯正义论密切相关。自然法则的法律化即形成宪政，自然正义构成宪政正义之维。经济宪政作为宪政的子系统，是宪政在经济法领域的展开，经济宪政与正义原则密不可分，正义原则是经济宪政的根本价值追求，经济宪政是正义原则的最佳实现形式。在经济立宪阶段，布坎南的宪政经济学通过采用不确定之幕和运用经济学的决策成本比较，确立了参与性与“一致同意原则”为正义原则的先置程序标准，即程序正义。而实体正义则表现为经济宪政正义原则的具体内容，罗尔斯正义二原则可资借鉴，它们是作为基础的自由平等原则和作为补充的差别原则，其中差别原则是对机会公平平等原则的补充，它通过对机会公平平等原则所导致的阶段性不平等进行矫正，从而达至最终结果平等，所以平等是基础。这几项原则存在着优先次序性，首先是自由平等原则的绝对优先，这体现在政治生活领域里不容差别原则存在，其次是机会公平平等原则对差别原则的优先，这体现在经济生活领域里可以容忍差别原则的存在，但它居于次要地位，其目标也是为了达至最终结果平等。差别原则为经济法的国家干预与矫正提供了依据，同时也表明了国家干预与矫正的补充性地位。罗尔斯正义论还表明了自由相对平等的优先性，自由是正义的核心，平等是自由的平等，国家干预经济所应达到的平等最终是经济自由平等，这实际就是经济法所要保障的权利，因而，经济自由平等就是经济宪政正义原则的核心内容和实质标准。作为一项法律权利，经济宪政正义原则，即经济自由平等，具有静态和动态的结构形式，其静态结构表现为公民的经济权利与政府经济权力之间所形成的经济法律关系，其动态结构表现为经济法治的实现过程。 经济宪政正义原则必须化为具体的法律制度安排才能真正落到实处。正义原则的规范性为经济宪政的实现奠定了基础，它首先要求宪法必须要能够确保宪政正义；其次要使法律法规必须要符合正义原则和宪法精神。经济宪政还特别要求强化具体经济法律制度的设计。同时，，正义原则（即经济自由平等）在经济宪政中的制度构建应当围权利保障来进行。不能发展的正义不是真正的正义，经济法治发展是检验正义原则发展的重要标准。“一致意见”是正义原则发展的逻辑起点；而公民的参与性是正义原则发展的根本保障，如果通过对话或者妥协，满足了其对立宪理念或立宪利益的需要，这种参与性将会形成“一致意见”；在没有满足参与性要求、或者没有形成一致意见情形下，应当保留公共理性和司法审判作为正义原则发展的补偿机制。 我国当前诸种经济社会问题的根源在于经济违宪和背离正义，而违宪本质上是对正义的偏离，因而解决这些问题要从纠正违宪着手以实现经济宪政正义原则。针对各种违宪的成因，在经济领域里应通过提高立法民主化程度、规范行政执法行为、强化司法程序、完善宪法解释制度、健全法规备案制度、建立公共讨论平台等措施纠正违宪。 通过综合布坎南的宪政经济学与罗尔斯正义论，经济宪政正义原则在立宪程序与实体内容上提出一套相对完整、具有操作性的正义标准，并使之法律制度化，从而实现正义原则的自由平等价值与经济宪政的权利保障措施对接吻合，这对于以经济宪政满足公民的参与愿望和意见表达，缓和乃至消除当前经济社会的各种矛盾，从而实现经济自由平等具有现实意义。
[Abstract]:The traditional economic law is an important manifestation of the state intervention in the economy. It is closely related to the theory that Keynes economics increases the effective demand to stimulate economic growth. Therefore, it takes economic growth as the target value orientation. But if the existing economic law is reexamined from the perspective of constitutionalism, it can be found that its value goal should be a just original. The formation and operation of economic law should conform to the principle of economic constitutionalism and justice.
The theoretical formation of the principle of economic constitutional justice is closely related to the theory of natural law, the theory of economic constitutionalism, the constitutional economics of Buchanan and the theory of justice of Rawls. The law of the law of nature forms constitutionalism, and the natural justice constitutes the dimension of constitutional justice. The principle of politics and justice is inseparable, the principle of justice is the fundamental value pursuit of economic constitutionalism, and economic constitutionalism is the best form of realizing justice. In the stage of economic constitutionalism, Buchanan's constitutional economics has established the justice of participation and the "consensus principle" as justice through the comparison of the decision cost of using the act of uncertainty and the use of economics. The first standard of the principle of principle is the procedural justice, and the substantive justice is the specific content of the principle of economic constitutional justice. The two principles of justice of Rawls can be used for reference. They are the principle of freedom and equality as the basis and the complementary principle of difference. The difference principle is the supplement to the principle of fair and equal opportunity, and it passes the opportunity. The principle of equality and equality leads to the correction of the stage inequality, thus reaching the equality of the final result, so equality is the basis. These principles have priority, first of all, the absolute priority of the principle of freedom and equality, which is reflected in the existence of the non tolerance in the field of political life, followed by the principle of equal opportunity and equality to the difference. The priority of principle is reflected in the existence of tolerance principle in the field of economic life, but it is in the secondary position, and its goal is to reach the final result. The difference principle provides the basis for the state intervention and correction of economic law, and it also shows the complementary status of the state's dry pre and correction. Rawls's justice theory also It shows that freedom is the priority of relative equality, freedom is the core of justice, equality is the equality of freedom, equality in the state of intervention in the economy is ultimately economic freedom and equality, which is the right to be guaranteed by economic law. Therefore, economic freedom and equality is the core and essential standard of the principle of economic constitutional and political justice. The legal right, the principle of economic constitutional justice, the economic freedom and equality, and the static and dynamic structural form, its static structure is the economic legal relationship between the economic rights of citizens and the economic power of the government, and its dynamic structure is manifested as the actual process of the economic rule of law.
The principle of economic constitutional justice must be transformed into a concrete legal system, which lays a foundation for the realization of economic constitutionalism. First, it requires that the constitution must be able to ensure constitutional justice; secondly, the laws and regulations must conform to the principle of positive meaning and the spirit of the constitution. It is required to strengthen the design of the specific economic legal system. At the same time, the principle of Justice (i.e., economic freedom and equality) should be carried out in the system of economic constitutionalism. The justice that can not be developed is not real justice. The development of the economic rule of law is the important criterion for the development of the principle of testing justice. "Consensus" is the development of the principle of justice. Logical starting point; and citizen participation is the fundamental guarantee for the development of the principle of justice. If a dialogue or compromise is made to satisfy the need for its constitutional ideas or constitutional interests, this participation will form a "consensus"; public reason should be retained without meeting the requirements of participation or having no consensus. And judicial adjudication as compensation mechanism for the development of justice principles.
The root of the current economic and social problems in our country lies in the unconstitutionality of the economy and the departure from the justice, and the violation of the constitution is essentially a deviation from the justice. Therefore, to solve these problems, the principle of economic constitutional justice should be realized by correcting the violation of the constitution. In view of the causes of various constitutionalism, the degree of democratization of the legislation should be improved and the administrative enforcement should be standardized in the economic field. Legal actions, strengthening judicial procedures, improving the system of constitutional interpretation, perfecting regulations and filing system, setting up public discussion platforms and other measures to correct violation of the constitution.
Through the synthesis of Buchanan's constitutional economics and the theory of Rawls justice, the principle of economic constitutional justice puts forward a set of relatively complete, operational justice standards and legal institutionalization in constitutional procedures and substantive contents, thus realizing the freedom and equality value of the principle of justice and the protection of the rights of economic constitutionalism. It is of practical significance to satisfy the desire and expression of citizens' participation by economic constitutionalism, to mitigate and even eliminate all kinds of contradictions in the current economic society, so as to realize economic freedom and equality.
【学位授予单位】：湖南大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D90-052
本文编号：2144231
[Abstract]:The traditional economic law is an important manifestation of the state intervention in the economy. It is closely related to the theory that Keynes economics increases the effective demand to stimulate economic growth. Therefore, it takes economic growth as the target value orientation. But if the existing economic law is reexamined from the perspective of constitutionalism, it can be found that its value goal should be a just original. The formation and operation of economic law should conform to the principle of economic constitutionalism and justice.
The theoretical formation of the principle of economic constitutional justice is closely related to the theory of natural law, the theory of economic constitutionalism, the constitutional economics of Buchanan and the theory of justice of Rawls. The law of the law of nature forms constitutionalism, and the natural justice constitutes the dimension of constitutional justice. The principle of politics and justice is inseparable, the principle of justice is the fundamental value pursuit of economic constitutionalism, and economic constitutionalism is the best form of realizing justice. In the stage of economic constitutionalism, Buchanan's constitutional economics has established the justice of participation and the "consensus principle" as justice through the comparison of the decision cost of using the act of uncertainty and the use of economics. The first standard of the principle of principle is the procedural justice, and the substantive justice is the specific content of the principle of economic constitutional justice. The two principles of justice of Rawls can be used for reference. They are the principle of freedom and equality as the basis and the complementary principle of difference. The difference principle is the supplement to the principle of fair and equal opportunity, and it passes the opportunity. The principle of equality and equality leads to the correction of the stage inequality, thus reaching the equality of the final result, so equality is the basis. These principles have priority, first of all, the absolute priority of the principle of freedom and equality, which is reflected in the existence of the non tolerance in the field of political life, followed by the principle of equal opportunity and equality to the difference. The priority of principle is reflected in the existence of tolerance principle in the field of economic life, but it is in the secondary position, and its goal is to reach the final result. The difference principle provides the basis for the state intervention and correction of economic law, and it also shows the complementary status of the state's dry pre and correction. Rawls's justice theory also It shows that freedom is the priority of relative equality, freedom is the core of justice, equality is the equality of freedom, equality in the state of intervention in the economy is ultimately economic freedom and equality, which is the right to be guaranteed by economic law. Therefore, economic freedom and equality is the core and essential standard of the principle of economic constitutional and political justice. The legal right, the principle of economic constitutional justice, the economic freedom and equality, and the static and dynamic structural form, its static structure is the economic legal relationship between the economic rights of citizens and the economic power of the government, and its dynamic structure is manifested as the actual process of the economic rule of law.
The principle of economic constitutional justice must be transformed into a concrete legal system, which lays a foundation for the realization of economic constitutionalism. First, it requires that the constitution must be able to ensure constitutional justice; secondly, the laws and regulations must conform to the principle of positive meaning and the spirit of the constitution. It is required to strengthen the design of the specific economic legal system. At the same time, the principle of Justice (i.e., economic freedom and equality) should be carried out in the system of economic constitutionalism. The justice that can not be developed is not real justice. The development of the economic rule of law is the important criterion for the development of the principle of testing justice. "Consensus" is the development of the principle of justice. Logical starting point; and citizen participation is the fundamental guarantee for the development of the principle of justice. If a dialogue or compromise is made to satisfy the need for its constitutional ideas or constitutional interests, this participation will form a "consensus"; public reason should be retained without meeting the requirements of participation or having no consensus. And judicial adjudication as compensation mechanism for the development of justice principles.
The root of the current economic and social problems in our country lies in the unconstitutionality of the economy and the departure from the justice, and the violation of the constitution is essentially a deviation from the justice. Therefore, to solve these problems, the principle of economic constitutional justice should be realized by correcting the violation of the constitution. In view of the causes of various constitutionalism, the degree of democratization of the legislation should be improved and the administrative enforcement should be standardized in the economic field. Legal actions, strengthening judicial procedures, improving the system of constitutional interpretation, perfecting regulations and filing system, setting up public discussion platforms and other measures to correct violation of the constitution.
Through the synthesis of Buchanan's constitutional economics and the theory of Rawls justice, the principle of economic constitutional justice puts forward a set of relatively complete, operational justice standards and legal institutionalization in constitutional procedures and substantive contents, thus realizing the freedom and equality value of the principle of justice and the protection of the rights of economic constitutionalism. It is of practical significance to satisfy the desire and expression of citizens' participation by economic constitutionalism, to mitigate and even eliminate all kinds of contradictions in the current economic society, so as to realize economic freedom and equality.
【学位授予单位】：湖南大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D90-052
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本文编号：2144231
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