我国宪政建设研究

发布时间：2018-11-10 09:03

【摘要】：清末立宪至今已逾百年,中国社会几经沧桑,宪政至今还不是现实,而是一种探索和追求的目标,在改革开放取得巨大成就的今天,宪政改革并非变得可有可无,相反地,宪政改革变得越来越紧迫了,中国和平地转入宪政轨道符合每个公民的利益。本文首先回顾宪政历史,其次分析宪政转型的路径,再次从民主和制衡两个方面论述,最后展望中国宪政转型的前景。第一章论述中国宪政转型的世界背景和历史背景。近代宪政始于英国议会制度,通过对英国议会历史的回顾,可以总结出现代宪政的两大基本原则是民主和制衡。随着历史的发展,民主和制衡的内涵已大为丰富,民主由最初多数决定发展到今天选举民主和参与民主并存的多重形式,制衡由最初议会对国王的监督发展到后来司法审查的确立直至今天社会权力(包括媒介权力)的勃兴。第二章论述中国宪政转型路径选择。首先描述了我国制度现实及问题,其次考察法国和美国的宪政转型模式,得出民主和制衡同步推进的结论,最后指出我国也宜采取此路径,但强调民主对宪政转型的重要性。第三章论述我国民主建设的路径,首先阐述我国制度现状,然后分别从代议制民主和参与制民主两个方面分别阐述。关于代议制民主,回顾了西方相关理论和实践,对我国选举法和代表法的修改情况进行评论,提出进一步完善的方向。关于参与制民主,其理论依据是表达自由和正当程序,借鉴美国的参与制民主发展经验,提出我国参与制民主发展的措施。第四章论述我国制衡建设的路径,制衡措施有多种,但其中最重要的要数法院对立法和行政的司法审查,法国和美国是两大法系的代表国家,法国最早确立行政诉讼,美国最早确立宪法审查,两国的司法审查经验相当丰富,值得我国借鉴。我国行政诉讼尚未完全发挥其应有的作用,宪法审查尚未建立,我国应进一步完善行政诉讼制度,尽早确立宪法审查制度。第五章论述中国宪政转型的前景。苏联解体的教训虽然值得汲取,但是俄罗斯的政治转轨经验更值得我们借鉴,中国的宪政转型不但不会出现分裂,反而有助于台湾的和平统一。在朝野都认识到宪政利于国家和人民的情况下,满清贵族基于自身利益的考虑,一再拖延宪政改革,最终丧失的主动改革的最佳时机,当下中国若不采取积极措施主导宪政改革,即使暂时能够通过宣传工具和暴力机器维持其统治,民众的创造活力必将因体制压抑而窒息消亡,国家的整体实力必将因内部倾轧而消耗殆尽,最终不仅可能回到治乱循环的历史周期律,还可能面临亡国灭种的威胁。
[Abstract]:It has been more than a hundred years since the constitution was established in the late Qing Dynasty. Chinese society has experienced vicissitudes of life. Constitutional government is not a reality, but a goal of exploration and pursuit. Today, when the reform and opening up has made great achievements, constitutional reform has not become dispensable, on the contrary. Constitutional reform is becoming more and more urgent, and it is in the interest of every citizen that China's peaceful transition to constitutional government. This paper first reviews the history of constitutionalism, then analyzes the path of constitutional transformation, then discusses it from the two aspects of democracy and checks and balances, and finally looks forward to the prospect of constitutional transformation in China. The first chapter discusses the world background and historical background of China's constitutional transformation. Modern constitutionalism began in the British parliamentary system. By reviewing the history of the British Parliament, it can be concluded that the two basic principles of modern constitutionalism are democracy and checks and balances. With the development of history, the connotation of democracy and checks and balances has been greatly enriched. Democracy has evolved from a majority decision to a multifold form of electoral democracy and participatory democracy. Checks and balances developed from the first parliamentary supervision of the king to the later establishment of judicial review until today's social power (including the power of the media) flourished. The second chapter discusses the path choice of constitutional transition in China. This paper first describes the reality and problems of our country's system, then investigates the transition mode of constitutionalism in France and the United States, draws the conclusion that democracy and checks and balances advance simultaneously, and finally points out that our country should take this path, but emphasizes the importance of democracy to constitutional transformation. The third chapter discusses the path of our country's democracy construction, first expounds the present situation of our country's system, then separately elaborates from the representative system democracy and the participation system democracy two aspects respectively. On representative democracy, this paper reviews the relevant theories and practices in the west, comments on the revision of the electoral law and the representative law in our country, and puts forward the direction of further improvement. As for participatory democracy, its theoretical basis is freedom of expression and due process, drawing lessons from the experience of the development of participatory democracy in the United States, and putting forward the measures for the development of participatory democracy in our country. The fourth chapter discusses the path of the construction of checks and balances in China. There are a variety of checks and balances, but the most important of them is the judicial review of legislation and administration by the courts. France and the United States are the representative countries of the two major legal systems, and the administrative litigation is first established in France. The United States first established the constitutional review, the two countries' judicial review experience is quite rich, worthy of our country's reference. China's administrative litigation has not fully played its due role, the constitutional review has not yet been established, our country should further improve the administrative litigation system, and establish the constitutional review system as soon as possible. The fifth chapter discusses the prospect of constitutional transformation in China. Although the lessons of the disintegration of the Soviet Union are worth learning, the experience of Russia's political transition is worth drawing lessons from. China's constitutional transformation will not be divided, but will contribute to the peaceful reunification of Taiwan. When the government and the opposition all realized that constitutionalism was beneficial to the country and the people, the Manchu aristocrats, on the basis of their own interests, repeatedly delayed constitutional reform and eventually lost the best opportunity for active reform, If China does not take active measures to lead constitutional reform, even if it can temporarily maintain its rule through propaganda tools and violent machines, the creative vitality of the people will surely suffocate because of institutional repression. The whole strength of the country will be exhausted because of the internal pounding. Finally, it may not only return to the periodic law of the cycle of fighting chaos, but also face the threat of the extinction of the nation.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D921

【相似文献】