论公权与私权之间的平衡

发布时间：2018-09-10 16:12

【摘要】：权利与权力是法理学的一对非常重要的基本范畴,权利与权力构成的关系是法律调整的核心。权利是权力的来源,权力是权利的保障,这已经被我们理论界所公认。人类社会生活可以分为两大领域,一是政治国家生活领域,二是市民社会生活领域。市民社会与政治国家在漫长的人类历史的演进过程中矛盾的发展,这种演进过程表现为私权与公权的不断纠合、对峙、妥协。对于现代社会来讲,建立在自由平等基础上的公民权利,是一个政治共同体据以维持与发展的现实起点。与此同时现代社会中,随着政府职能的不断扩大,公权已经渗入到社会生活的各个方面各个角落,可以说,只要有人存在的地方,就有公权的存在。公权的权力主体在行使权力时,一旦因其贪念而超出了法律预先设定的程序轨道,权力则必然滥用,自古至今一切权力的拥有者都没能逃脱权力滥用的怪圈。要想防止权力的滥用这就需要我们为权力的行使设定条件和程序,用权利来制约权力。如何合理地定位公权与私权,平衡好公权与私权的冲突,规制好公权,保障好私权,使公权能更充分地为私权服务,已成为我国建设社会主义法治国家的一个重要课题,这也正是本文研究目的之所在。本文的第一部分介绍了公权与私权的关系,分析了平衡公权与私权的理论价值,第二部分由一个案例引发,着重探讨了公权与私权发生冲突的原因,我国现阶段公权与私权冲突的表现,以及公权介入私权的条件。第三部分提出了笔者对如何平衡公权与私权关系这一问题的建议。树立公民的权利意识,健全完善法律运行体制,积极发挥社会组织的润滑剂作用。只有这样才能使公权和私权行为走上法治化道路。
[Abstract]:Right and power are a very important basic category of jurisprudence, and the relationship between right and power is the core of legal adjustment. Right is the source of power and power is the guarantee of right, which has been recognized by our theorists. Human social life can be divided into two major areas, one is political and national life, the other is civil life. The development of contradiction between civil society and political state in the process of evolution of human history is manifested in the constant reconciliation of private right and public power, confrontation and compromise. For modern society, the civil right based on freedom and equality is the realistic starting point for the maintenance and development of a political community. At the same time, in modern society, with the continuous expansion of government functions, public power has penetrated into every aspect of social life, it can be said that as long as there are places, there is public power. When the power subject of public power is exercising its power, once it oversteps the procedure set by the law because of its greed, the power is bound to be abused. Since ancient times, all the power holders have not been able to escape the strange circle of power abuse. To prevent the abuse of power, we need to set conditions and procedures for the exercise of power and restrict power with power. How to reasonably locate public rights and private rights, balance the conflicts between public rights and private rights, regulate public rights, protect private rights, and make public rights serve private rights more fully has become an important subject in building a socialist country ruled by law. This is the purpose of this study. The first part of this paper introduces the relationship between public right and private right, and analyzes the theoretical value of balancing public right and private right. The second part is triggered by a case, focusing on the causes of the conflict between public right and private right. The expression of the conflict between public right and private right, and the condition of public right intervening in private right. The third part puts forward the author's suggestion on how to balance the relation between public right and private right. Set up the citizen's right consciousness, perfect the law operation system, give play to the lubricant function of the social organization actively. Only in this way can public rights and private rights be ruled by law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90

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