论经济法治

发布时间：2018-04-23 03:38

本文选题：法治 + 部门法　；参考：《湖南大学》2008年硕士论文

【摘要】： 法治理论与部门法基础理论的结合具有重要意义。作为法学理论与法制实践中重要概念的法治,不能只满足于抽象的概念性的宏大叙事,而应当落实到各个具体的部门法领域。从法治这一概念中可以合乎逻辑地引申出经济法治概念,经济法治就是经济法领域的法治状态。从部门法理学研究而言,加强经济法治研究就是提倡经济法的法理学研究,它对揭示经济法律规范的法理精神,以及对经济立法和司法实践具有重要的理论指导意义。部门法的特定功能以及它们之间的分工协作关系,建构并维持了一国的法治。自由资本主义时期的法治模式以民商法为主导。而在现代市场经济条件下,经济法成为一国法治的主导性部门法。但是,由于经济法的产生方式具有较强的政府意志性,经济法领域的法治问题十分突出。因此,经济法治概念的提出具有重要的理论和现实意义。经济法治的基本原则是衡量经济法治实施的标准,是连接经济法理论与实践的桥梁。经济法治的基本原则具体归纳为:社会本位原则、实质正义原则、国家干预合理原则以及综合调整原则。维护社会整体利益的社会本位思想彰显了经济法追求的基本理念;实质正义表明了经济法的价值取向;国家干预是经济法追求并达致社会本位和实质正义的基本法律特征;而公法与私法两种手段综合调整原则是实现经济法治的具体调整方法与手段。传统私法的局限性以及转型期中国社会经济矛盾出现的“共时性”特点,昭示着经济法对我国市场经济秩序的构建以及促进政府经济职能的转变上具有重要的功能。要充分发挥经济法在法治实践中的作用,必须弘扬并创建以经济法为主导的法治模式。根据经济法治基本原则以及对我国法治实践的考察,我国经济法在制定、实施等环节与经济法治要求相距甚大,在理念和制度构建上还未理清国家与私人行动的合理界限。因而,目前我国经济法治的实践路向就是按照经济法治原则科学界定政府在经济领域的法治角色、按照责权利统一原则合理配置政府在经济领域的调控权力,在理念与制度层面全方位实现经济法治的基本要求。
[Abstract]:The combination of the theory of rule of law and the basic theory of department law is of great significance. As an important concept in legal theory and legal practice, the rule of law should not only be satisfied with abstract conceptual grand narration, but should be implemented to various specific fields of law. The concept of economic rule of law can be logically derived from the concept of rule of law, which is the state of rule of law in the field of economic law. From the perspective of departmental jurisprudence, strengthening the study of economic rule by law is to promote the study of jurisprudence of economic law, which is of great theoretical significance for revealing the legal spirit of economic legal norms and for economic legislation and judicial practice. The specific function of department law and the relationship of division of labor and cooperation between them construct and maintain the rule of law in a country. The mode of rule of law in the period of free capitalism is dominated by civil and commercial law. Under the condition of modern market economy, economic law has become the leading branch law of a country's rule of law. However, due to the strong government will, the rule of law in the field of economic law is very prominent. Therefore, the concept of economic rule of law has important theoretical and practical significance. The basic principle of economic rule of law is the standard to measure the implementation of economic rule of law and a bridge connecting the theory and practice of economic law. The basic principles of economic rule of law are summarized as follows: social standard principle, substantial justice principle, state intervention principle and comprehensive adjustment principle. The social standard thought of safeguarding the whole interests of society shows the basic idea of pursuing economic law; substantive justice shows the value orientation of economic law; state intervention is the basic legal characteristic of pursuing and achieving social standard and substantive justice in economic law; The principle of comprehensive adjustment of public law and private law is the concrete adjustment method and means to realize economic rule of law. The limitations of traditional private law and the "synchronic" features of social and economic contradictions in China during the period of transition indicate that economic law has an important function in the construction of market economic order and in promoting the transformation of government economic functions. In order to give full play to the role of economic law in the practice of rule of law, it is necessary to carry forward and create a legal model dominated by economic law. According to the basic principles of the economic rule of law and the investigation of the practice of our country's rule of law, the formulation and implementation of the economic law in our country are far from the requirements of the economic rule of law, and the rational limits of the state and private action have not been clarified in the construction of the concept and system. Therefore, at present, the practical direction of our country's economic rule of law is to scientifically define the role of the government in the economic field in accordance with the principle of economic rule of law, and to rationally allocate the government's regulatory power in the economic field in accordance with the principle of unity of responsibility and rights. In the concept and system level to achieve the basic requirements of the economic rule of law.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D912.29

【引证文献】