两岸视野下平潭综合实验区的法律制度构建问题

发布时间：2018-05-27 21:00

本文选题：两岸关系 + 九二共识　；参考：《中国政法大学》2015年博士论文

【摘要】：台湾方面有研究指出,大陆地区平潭综合实验区是中国大陆“一国两制”试验区,然在透过分析自1949年两岸分治以来的史料、两岸政策、背景及“一国两制”构想形成的历程可知,实验区的理念源头应是“和平统一”而非“一国两制”,实验区秉着“大胆创新、先行先试”的原则,推出了许多优惠政策,本文在两岸视野下说明这些优惠政策藉以提供读者更客观看待实验区的知识基础。大陆地区平潭综合实验区秉着“大胆创新、先行先试”的原则在实验区探索两岸“五个共同”,然而若无台湾地区的政策、制度配合,即难以达成建设两岸共同家园的目标,孤掌难鸣。实验过程中面对实验区政策与两岸现有法律、法规等制度b^格冲突之处,两岸应共同协商立法解决,经分析台湾地区现有的两岸协议机制与两岸共商立法模式的利弊,建议两岸应以“九二共识”为前提,在ECFA的框架下,以“立法内容堆积木、立法平台爬楼梯”的原则,依实验初期、中期、后期三阶段,顺应实验区两岸人民的需要转换两岸共商立法模式。平潭综合实验区为促进两岸经济社会融合与两岸关系和平发展并进一步推动实验区体制机制创新,本文以比较法研究设想实验区基本法的内涵,将两岸宪法一致的部分抽出作为实验区基本法的基础,并回顾历史寻找两岸可能共同接受的政府组织设计,最后以南怀瑾先生所提出的“共产主义的理想,社会主义的福利,资本主义的管理,中国文化的精神”,将实验区基本法设计为解决近代中国主义路线之争的实验田,期能抛砖引玉并为未来两岸融合后的中国提供新宪政的参考。对于实验区若干法律问题,有关台湾人民在实验区担任公职与简化台湾地区人民在实验区人员入出境的可行模式,本文提出实验初期两岸可合资成立管理顾问公司聘用台湾人民分担公共事务的管理,实验中期大陆地区修改公务员法、台湾地区修改两岸关系条例,实验后期两岸共同设计实验区政府组织、台湾地区进一步修改两岸关系条例;简化台湾地区人民在实验区人员入出境方面,实验初期规划台湾地区人民由实验区进入大陆地区免签注,实验中期台胞证的有效期延长为10年,实验后期开放台湾地区人民持台湾地区身份证即可入境实验区。在实验区的居民方面,本文建议对于实验区的部分优惠政策可配合实验区建设的进程逐步订定实施办法或细则来落实相关优惠政策,关于两岸之间法规、标准、定义有歧异的部分可透过两岸协议解决,逐步完成两岸相关法规的对接,也逐渐增加两岸互相开放的项目。
[Abstract]:Taiwan has pointed out that the Pingtan Comprehensive Experimental area in the mainland is the "one country, two systems" experimental area in mainland China. However, through the analysis of historical data since the separation and rule of the two sides of the Taiwan Strait in 1949, the cross-strait policies have been analyzed. The background and the course of formation of the concept of "one country, two systems" show that the idea of "peaceful reunification" rather than "one country, two systems" should be the source of the concept of "one country, two systems", and the experimental area has put forward many preferential policies under the principle of "bold innovation and first trial". This paper illustrates these preferential policies from both sides of the Taiwan Strait to provide readers with a more objective view of the experimental area. The Pingtan Comprehensive Experimental area of the mainland region has pursued the principle of "bold innovation, first try first" in the experimental area to explore the "five similarities" between the two sides of the strait. However, without the policy of the Taiwan region and the coordination of the system, it will be difficult to achieve the goal of building a common home between the two sides of the strait. It's hard to be alone. In the course of the experiment, faced with the conflict between the policy of the experimental area and the existing laws and regulations of the two sides of the strait, the two sides should jointly negotiate and legislate for a solution. After analyzing the advantages and disadvantages of the existing cross-strait agreement mechanism in the Taiwan region and the legislative model of the two sides of the strait, It is suggested that the two sides of the strait should take the "1992 consensus" as the premise, under the framework of the ECFA, according to the principle of "stacking of legislative contents and climbing the stairs of the legislative platform", according to the three stages of the experiment at the initial, middle and late stages. To meet the needs of the people on both sides of the strait in the experimental area, to change the legislative model of cross-strait co-discussion. In order to promote the economic and social integration between the two sides and the peaceful development of cross-strait relations, and to further promote the innovation of the system and mechanism of the experimental area, this paper studies the connotation of the basic Law of the experimental area by comparative law. To draw out the part of the common constitution of the two sides of the strait as the basis of the basic Law of the experimental area, and to look back at the history of the government organization design that may be accepted by the two sides of the strait. Finally, with the "communist ideal, socialist welfare" put forward by Mr. Nan Huaijin, The management of capitalism and the spirit of Chinese culture ", the basic law of the experimental area is designed as an experimental field to solve the dispute over the line of modern Chinese doctrine, which can provide a reference for the future China after the integration of the two sides of the strait. With regard to some legal issues in the experimental area, the feasible mode for the Taiwan people to hold public office in the experimental area and simplify the entry and exit of the people of the Taiwan region in the experimental area, This paper suggests that at the beginning of the experiment, the two sides can set up joint venture management consulting firms to employ the Taiwan people to share the management of public affairs. In the middle of the experiment, the mainland revised the civil service law, and the Taiwan region revised the cross-strait relations regulations. In the latter part of the experiment, the two sides jointly designed the government organization of the experimental area, and the Taiwan region further revised the regulations on cross-strait relations; and simplified the people of Taiwan in terms of the entry and exit of the personnel in the experimental area. In the early stage of the experiment, the people of Taiwan entered the mainland from the experimental area without a visa, the validity of the Taiwan compatriots' certificate was extended to 10 years in the middle of the experiment, and in the latter part of the experiment, the people of Taiwan were opened to enter the experimental area with the identity card of Taiwan. As far as residents of the experimental areas are concerned, this paper suggests that some preferential policies in the experimental areas can be coordinated with the construction process of the experimental areas and gradually formulate implementation methods or detailed rules to implement the relevant preferential policies, as regards the laws and regulations between the two sides of the strait, the standards, The definition of different parts can be resolved through cross-strait agreements, gradually completing the docking of relevant cross-strait laws and regulations, and gradually increasing the cross-Strait projects of opening up to each other.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D927

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