应然与实然:《城乡规划法》立法的改进和完善

发布时间：2018-08-19 15:24

【摘要】：随着我国经济社会的发展,《城乡规划法》在运行中出现了一定程度的不适应,亟需加强其完善工作。文章通过对法哲学中应然与实然关系论的研究,探究法价值目标与立法实践之间的分异,以期实现法的理论与实践层面的和谐。在法的效率价值上,这种分异表现为立法机构对社会现象的反应迟缓、城市设计实施缺乏法律保障;在法的公平价值上,这种分异体现在城乡规划评估机制的缺失和规划决策责任追究主体的认定模糊。基于此,提出应当提高立法效率,坚持立、改、废、释并举,更加明确城市设计的法律地位,建立城乡规划的第三方评估机制,保障多元主体有效参与城乡规划监督决策,以实现《城乡规划法》立法从实然到应然的改进和完善。
[Abstract]:With the development of our country's economy and society, the "Urban and Rural Planning Law" has not been adapted to a certain degree in its operation, so it is urgent to strengthen its perfection. Through the study of the theory of the relationship between the ought and the reality in the philosophy of law, this paper probes into the difference between the value goal of law and the legislative practice, in order to realize the harmony between the theory and practice of law. In terms of the efficiency value of law, this differentiation is manifested by the slow response of the legislature to social phenomena, the lack of legal protection in the implementation of urban design, and the fair value of law. This differentiation is reflected in the lack of urban and rural planning evaluation mechanism and the ambiguity of the subject of responsibility for planning decision. Based on this, it is suggested that we should improve the efficiency of legislation, persist in establishing, reforming, scrapping, and expounding the legal status of urban design, establish a third-party evaluation mechanism for urban and rural planning, and ensure the effective participation of multiple subjects in the supervision and decision-making of urban and rural planning. In order to achieve the "urban and rural planning law" legislation from reality to should be improved and improved.
【作者单位】：湖南大学建筑学院;
【基金】：高等学校博士点基金资助项目(20130161110040)
【分类号】：D922.297

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