论作为宪政工具的预算
发布时间：2019-03-16 13:12
【摘要】：预算的法律性质,是我们认识理解预算制度时的一个基础性问题。它能够明确预算的功能和立场,助力预算的实施和效力发挥。目前对预算法律性质的探讨不仅较少,而且主要围绕着传统的“法律说”、“行政说”、“折中说”进行讨论。虽然这些学说中体现了财政宪政主义理念的深化融合,但是其中具有“非此即彼、非黑即白”的认识缺陷,这极易在预算过程中造成对对立一方的忽视与消解。究其根源,这与我国经济法研究中惯常使用的“二元对立”研究范式有关。因此,突破“二元对立”思维范式的藩篱,回避其内在的斗争特性,成为我们当前亟需解决的问题。发端于我国本土的中医学,伴随着华夏民族走过几千年的风风雨雨。在这个过程中,中华民族的生生不息已经对其有效性和科学性做了最好的证实。在中医这种重要的文化形态中,闪烁着耀眼的中国智慧,贯穿着一种强调对立统一、追求平衡协调的思想观念,这为我们进行经济法研究范式的转换、预算法律性质的拓新提供了一种新的视角。政府的有效运作,离不开国家财政的支持保障。因此对财政的掌控,也被认为是规范政府权力的一个关键路径。预算作为一国财政的基本框架,控权是其最根本的特性。它通过对预算收入和支出的管理,最终保证了政府的收支不偏离纳税人的利益诉求,保障了公民的财产权利不受政府权力的侵犯。而宪政,作为一种普适价值,其中蕴含着浓郁的限制权力与保障权利的基本理念,体现着权力与权利、政府与公民之间的相依相存关系。因此在中医文化的指引下,将预算定位为一种宪政工具,不仅能够弥补现有的对预算法律性质认识之不足,而且是对“二元对立”研究范式的一次超越,从而有利于推动预算过程中的公权力与私权利走向平衡协调的最佳状态。对于预算的宪政工具性质之认知理路,笔者认为,应以全面整体为指导观念,全口径涵摄财政收入和财政支出;以平衡协调为调节方向,追求预算中的“二元统一”与动态平衡;以“整体利益”为价值本位,补充完善公共利益的缺陷;以预算国家为追求目标,实现预算的政府管理工具与管理政府工具的二重功能。对于预算的宪政工具性质之落实路径,我们除了在预算的运行实践中将全面编制和全程监督相结合,在绩效考量时将定量评价与定性评价相统一外,还需要在理论层面上对预算的品性、功能以及未来的发展趋向进行思考,从而发挥预算在新时代的治理工具之价值功能。
[Abstract]:The legal nature of the budget is a fundamental issue in our understanding of the budget system. It can clearly define the functions and positions of the budget, and help the budget to be implemented and effective. At present, the discussion on the legal nature of budget is not only less, but also mainly around the traditional "law theory", "administrative theory", "discount theory". Although these theories embody the deepening integration of the idea of fiscal constitutionalism, they have the cognitive defect of "either one or the other, either black or white", which can easily lead to the neglect and resolution of the opposite side in the budget process. This is related to the research paradigm of dualistic opposites, which is commonly used in the study of economic law in our country. Therefore, it is an urgent problem for us to break through the barriers of "dualistic opposites" thinking paradigm and avoid its inherent characteristics of struggle. Originated in China's native Chinese medicine, along with the Chinese nation has gone through thousands of years of wind and rain. In this process, the life of the Chinese nation has been the best proof of its effectiveness and scientific. In this important cultural form of traditional Chinese medicine, the dazzling wisdom of China runs through an ideological concept that emphasizes unity of opposites and pursues balance and harmony, which is the transformation of the paradigm of economic law research. The extension of the legal nature of the budget provides a new perspective. The effective operation of the government depends on the support of the state finance. Therefore, fiscal control is also considered to be a key way to regulate the power of the government. Budget as a basic framework of a country's fiscal, control is its most fundamental characteristic. Through the management of budget income and expenditure, it ensures that the revenue and expenditure of the government does not deviate from the interests of taxpayers, and ensures that the property rights of citizens are not infringed by the power of the government. Constitutionalism, as a universal value, contains a rich basic concept of restricting power and safeguarding rights, which embodies the relationship between power and rights, and between government and citizens. Therefore, under the guidance of traditional Chinese medicine culture, positioning the budget as a constitutional tool can not only make up for the deficiency of the existing understanding of the legal nature of the budget, but also transcend the research paradigm of "dualistic opposition". Therefore, it is beneficial to promote the balance and coordination of public power and private power in the budget process. As to the cognition of the nature of the constitutional tool of the budget, the author thinks that the comprehensive whole should be taken as the guiding concept, and the fiscal revenue and expenditure should be covered by the full-caliber; Take balance and coordination as the adjustment direction, pursue the "dual unity" and dynamic balance in the budget, take "the whole benefit" as the value standard, supplement and perfect the defects of the public interest; In order to achieve the dual function of the government management tool and the management tool, the budget country is the pursuit of the goal. For the implementation path of the constitutional tool nature of the budget, in addition to combining the overall compilation and the whole process supervision in the budget operation practice, we will unify the quantitative evaluation with the qualitative evaluation when considering the performance. In order to give full play to the value function of the budget in the new era, it is necessary to think about the character, function and future development trend of the budget on the theoretical level in order to bring into play the value function of the budget in the new era.
【学位授予单位】：中国计量大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.21
[Abstract]:The legal nature of the budget is a fundamental issue in our understanding of the budget system. It can clearly define the functions and positions of the budget, and help the budget to be implemented and effective. At present, the discussion on the legal nature of budget is not only less, but also mainly around the traditional "law theory", "administrative theory", "discount theory". Although these theories embody the deepening integration of the idea of fiscal constitutionalism, they have the cognitive defect of "either one or the other, either black or white", which can easily lead to the neglect and resolution of the opposite side in the budget process. This is related to the research paradigm of dualistic opposites, which is commonly used in the study of economic law in our country. Therefore, it is an urgent problem for us to break through the barriers of "dualistic opposites" thinking paradigm and avoid its inherent characteristics of struggle. Originated in China's native Chinese medicine, along with the Chinese nation has gone through thousands of years of wind and rain. In this process, the life of the Chinese nation has been the best proof of its effectiveness and scientific. In this important cultural form of traditional Chinese medicine, the dazzling wisdom of China runs through an ideological concept that emphasizes unity of opposites and pursues balance and harmony, which is the transformation of the paradigm of economic law research. The extension of the legal nature of the budget provides a new perspective. The effective operation of the government depends on the support of the state finance. Therefore, fiscal control is also considered to be a key way to regulate the power of the government. Budget as a basic framework of a country's fiscal, control is its most fundamental characteristic. Through the management of budget income and expenditure, it ensures that the revenue and expenditure of the government does not deviate from the interests of taxpayers, and ensures that the property rights of citizens are not infringed by the power of the government. Constitutionalism, as a universal value, contains a rich basic concept of restricting power and safeguarding rights, which embodies the relationship between power and rights, and between government and citizens. Therefore, under the guidance of traditional Chinese medicine culture, positioning the budget as a constitutional tool can not only make up for the deficiency of the existing understanding of the legal nature of the budget, but also transcend the research paradigm of "dualistic opposition". Therefore, it is beneficial to promote the balance and coordination of public power and private power in the budget process. As to the cognition of the nature of the constitutional tool of the budget, the author thinks that the comprehensive whole should be taken as the guiding concept, and the fiscal revenue and expenditure should be covered by the full-caliber; Take balance and coordination as the adjustment direction, pursue the "dual unity" and dynamic balance in the budget, take "the whole benefit" as the value standard, supplement and perfect the defects of the public interest; In order to achieve the dual function of the government management tool and the management tool, the budget country is the pursuit of the goal. For the implementation path of the constitutional tool nature of the budget, in addition to combining the overall compilation and the whole process supervision in the budget operation practice, we will unify the quantitative evaluation with the qualitative evaluation when considering the performance. In order to give full play to the value function of the budget in the new era, it is necessary to think about the character, function and future development trend of the budget on the theoretical level in order to bring into play the value function of the budget in the new era.
【学位授予单位】：中国计量大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.21
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