经济法学视野下市

发布时间：2018-05-13 01:02

本文选题：市场失灵 + 政府失灵　；参考：《南昌大学》2016年硕士论文

【摘要】：政府和市场的关系是经济法律制度和经济法学研究的一个逻辑起点,在经济法律制度的理论和实践中的困惑无不与之有关。市场存在垄断、负外部性、公共产品供给不足、收入分配不公等失灵,市场失灵需要政府加以干预,而政府的干预行为需要法律制度加以规范,以减少政府失灵,这个逻辑在经济法的独立性纷争中已得到充分论述。尽管“市场失灵”在中国经济法理论中享有自然科学中公理一般的地位,但这个概念的形成却以西方市场经济发达国家为社会原型,我国的市场化形成路径与西方发达国家完全不同,因此对“市场失灵”这个舶来品如何适用于我国的经济法律建设还应当区别看待。法律制度与市场交易、政府干预紧密相连,但是我国在过去计划经济的长期影响下,对于法律构建有着过度的迷念,尤其对于公权力管制私权利有着强烈的依赖,对于市场、私权利的强大内在力重视不足,对于制度科学性、可行性的重视度也严重不足。实际上制度只能是手段,不能成为目的,故而在任何阶段都不能放纵对制度的迷恋。更何况制度也存在制度替换、制度违背、制度投机、制度抵制、制度敷衍、制度附加、制度误用、制度照搬等失灵,不合理的法律制度无疑反过来成为改革的阻力,影响法律的实效。研究制度失灵可以使经济法律制度更好的弥补市场失灵和政府失灵。依据这样的逻辑,本文意在探寻市场、政府和制度三者之间的互动关系,明确市场的决定性地位,厘清政府和市场的边界,使经济法律制度更好的契合市场的需求,从而推动经济法学的发展。本文内容加上引言和结论一共有六个章节。第一章引言交代了本文的写作的时代背景。十八届三中全会明确了“使市场在资源配置中起决定性作用和更好发挥政府作用”的市场化改革目标,十八届四中全会提出了“全面推进依法治国”,在这样的时代下,探讨政府、市场、制度三者之间的关系具有迫切的理论和现实意义。第二章分为三个小节,从三个方面解释了论述市场、政府和制度的关系的必要性:一是当前我国的反市场化现状严重,市场化改革要求正确处理好政府和市场的关系;二是现行经济法律制度与市场的契合度不足,对于政府行为的约束不足,与我国依法治国的理念相背离;三是在法学学术界对于制度的研究以及市场决定作用下制度如何适应市场机制探讨不足。第三章分为四个小节,从四个方面抽离出中西方在处理政府与市场关系的经验:一是我国对于市场在资源配置中起决定作用的认识及西方经济学所主张的市场经济的运行逻辑;二是市场的发展离不开制度的保障,市场经济就是法治经济,产权保护、市场准入、市场交易、市场竞争等法律制度是稳定市场秩序、促进市场交易必要保障;三是市场失灵需要政府干预,市场失灵分为效率性市场失灵、公平性市场失灵和不成熟性市场失灵,不同的市场失灵有不同的政府干预;四是公共政策失误、公共产品供给低效等政府失灵需要法律制度加以约束。从这些经验总结中可以梳理出制度尤其是法律制度与市场、与政府的密切联系。第四章分为四个小节,论述了市场机制、政府干预与制度中心主义,主要有三层意思:一是应然上制度是市场自由发展、政府依法干预的保障,但是不能因此而陷入制度中心主义的错误逻辑之中,制度只是手段不是目的,更非万能,制度中心主义不能实现真正的法治经济;二是制度也存在失灵,并介绍了制度失灵的类别和表现,分析了制度失灵的原因;三是制度中心主义对于处理政府和市场关系的影响。第五章分为三个小节,论述经济法如何与市场机制、政府干预相契合。首先要明确市场的决定地位,充分鼓励市场自主,减少不成熟性市场失灵。其次政府干预也应当尊重市场机制,政府干预市场应当尽量减少微观监管,增强宏观调控的法治化,落实放管结合,建立公共服务性政府。最后,就经济法如何契合市场做出了以下几点建议:一是针对基础产业、土地、金融、环境等当前改革的重点领域应当做好法律的配套工作;二是在改革的不同阶段做好法律制度的过渡性安排,减少改革的风险;三是从立法、执法、守法及法律责任体系建设方面入手,提高立法质量,减少制度失灵。第六章总结,概括论述了在经济法学的视角下,政府、市场和制度各自的角色、功能、以及相互间的互动关系。
[Abstract]:The relationship between the government and the market is a logical starting point for the economic legal system and the study of economic law. The perplexity in the theory and practice of the economic and legal system is all related to it. The market exists monopoly, negative externality, the supply of public products is insufficient, and the income distribution is unfair. The market failure needs the government to intervene, and the government intervention The action needs the legal system to be regulated to reduce the failure of the government. This logic has been fully discussed in the independence dispute of economic law. Although "market failure" enjoys the general position of axiom in Natural Science in China's economic law theory, the concept is formed by the developed countries of the western market economy as a social prototype, The market formation path of the country is completely different from that of the western developed countries. Therefore, how the "market failure" is applied to the economic law construction of our country should be treated differently. The legal system is closely connected with the market transaction and the government intervention. However, under the long-term influence of the planned economy in the past, China has had a long time for the construction of the law. There is a strong dependence on the public power to control private rights. It pays little attention to the strong internal force of the market, the private rights, and the importance of the feasibility of the system. In fact, the system can only be a means, can not be a purpose, so it can not indulge in the system at any stage. The system also has system replacement, system violation, system speculation, system boycott, system perfunctory, system appending, system misuse, system copying and so on. Unreasonable legal system will undoubtedly become the resistance of reform and influence the actual effect of law. The failure of the research system can make the economic legal system better make up market failure and government failure. According to this logic, this article aims to explore the interactive relationship between the market, the government and the three system, clear the decisive position of the market, clarify the boundary of the government and the market, make the economic legal system better fit the demand of the market, and promote the development of the economic law. The content plus the introduction and the conclusion have six chapters in all. The introduction of chapter introduces the background of the writing of this article. In the third Plenary Session of the 18th CPC Central Committee, the goal of "making the market to play a decisive role in the allocation of resources and giving full play to the role of the government" was clarified in the third Plenary Session of the 18th CPC Central Committee. In the fourth Plenary Session of the 18th CPC Central Committee, the "comprehensive promotion of the rule of law" was put forward. In this era, the three parties of government, market and system were discussed. The relationship between them is of urgent theoretical and practical significance. The second chapter is divided into three sections. From three aspects, it explains the necessity of discussing the market and the relationship between the government and the system: first, the current situation of our country's anti marketization is serious, the market-oriented reform requires the correct handling of the relationship between the government and the market; two is the current economic legal system and the city. The agreement of the field is insufficient, the restraint of the government's behavior is insufficient and the idea of governing the country by law is deviated from the law. Three is in the study of the system and the market decision to adapt to the market mechanism under the role of the law academia. The third chapter is divided into four sections, and the Chinese and Western countries are separated from four aspects to deal with the government and the market. The experience of the Department is: one is our understanding of the decisive role of the market in the allocation of resources and the logic of the operation of the market economy advocated by the western economics. Two, the development of the market is inseparable from the guarantee of the system, the market economy is the rule of law economy, the protection of the property rights, the market access, the market trade, the market competition and so on is the stable market rank. In order to promote the necessary guarantee of market transaction, three is that market failure needs government intervention, market failure is divided into efficient market failure, fair market failure and immature market failure, different market failure has different government intervention; four is public policy error, public product supply is inefficient and other government failures need the legal system to make an appointment From the summary of these experiences, we can sort out the system, especially the legal system and market, and the close relationship with the government. The fourth chapter is divided into four sections. It discusses the market mechanism, the government intervention and the institutional centralism, which mainly have three meanings: first, the system is the guarantee of the market self development and the government intervention according to law, but it can not be caused by the legal system. In the wrong logic of institutional centralism, the system is only the means is not the purpose, but not the universal, the system centralism can not realize the real rule of law economy; two is the system also has the failure, and introduces the system failure category and performance, analyzes the reasons of the system failure; the three is the system centralism to deal with the government and the city. The fifth chapter is divided into three sections, which are divided into three sections. It is discussed how economic law fits with market mechanism and government intervention. First, it is necessary to make clear the decisive position of the market, fully encourage market autonomy and reduce the malfunction of the immature market. Secondly, the market mechanism should be respected by the government intervention, and the government intervention in the market should minimize the micro supervision and increase the supervision of the market. In the end, the following suggestions are made on how economic law fits the market. First, the legal system should be done well in the key areas of current reform such as basic industry, land, finance and environment, and two is to do a good job in the legal system at different stages of the reform. The transitional arrangement will reduce the risk of reform; the three is to improve the quality of legislation and reduce the failure of the system from the aspects of legislation, law enforcement, law-abiding and legal responsibility system. The sixth chapter summarizes the respective roles, functions and interaction relations of government, market and system in the perspective of economic law.

【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.29;D630;F123.9

【参考文献】