论部门法规范冲突的宪法调适

发布时间：2019-01-13 07:16

【摘要】：部门法规范冲突不仅是因部门法调整范围的交叉重叠所致,更是由公法、私法法律原则背离对峙而成,其主要表现为"刑民冲突"和"行民冲突"。在部门法规范冲突案件中,法官应当依据宪法上的比例原则和人权保障原则,在私法案件中适当引入公法规定而区分诸种民事法律行为之效果,在公法案件中为维护公法秩序而酌情考量当事人私法行为之效力。在中国特色社会主义法律体系已经形成的新时代背景下,部门法规范冲突宪法调适的实现,一是需要立法者在明确区分公法与私法的基础上促进两者接轨,二是需要司法机关充分体悟宪法精神,贯彻宪法原则,在司法审判等法律适用过程中对公法与私法规范的冲突作合理调适。
[Abstract]:The conflict of department law is not only caused by the overlapping of the adjustment scope of the branch law, but also by the deviation from the law principle of public law and private law, which is mainly manifested in the conflict between the criminal law and the private law. In conflict cases regulated by departmental law, judges should distinguish the effects of various civil legal acts according to the constitutional principle of proportionality and the principle of human rights protection and the proper introduction of public law provisions in private law cases. In public law cases, the effect of the parties' acts of private law should be considered as appropriate in order to maintain the order of public law. Against the background of a new era in which the socialist legal system with Chinese characteristics has been formed, the realization of the constitutional adjustment of the conflict between the norms of departmental laws and regulations requires legislators to promote the integration of public law and private law on the basis of a clear distinction between public law and private law. Second, it is necessary for the judicial organs to fully understand the spirit of the Constitution, implement the principles of the Constitution, and make reasonable adjustments to the conflict between public and private law norms in the course of the application of the law, such as judicial trial.
【作者单位】：厦门大学法学院;
【分类号】：D921

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