法治背景下村规民约研究

发布时间：2018-05-07 19:00

本文选题：村规民约 + 法治建设　；参考：《扬州大学》2017年硕士论文

【摘要】：村规民约古已有之,从古代的“乡约”到现代法治建设下的的村民自治章程,其都在基层社会治理中发挥着非常重要的作用。谢晖教授在他的《民间法之于法治作用的三个向度》一文中提到,国家具有“议事、行政、审判”三个机能,用以创造交往秩序的规则,无论是国家法,还是民间规范,都应在此三个方向上供法治秩序的建立和维护,而作为民间法典型代表的村规民约,在立法上自发的为农村村民主体立法,为国家正式制度的建立提供有益的借鉴、甚至直接予以国家正式的规范资源;在行政上把那些没被法律明令认可,在实践中却行之有效的规则规范运用到解决行政活动中去;在作为法律“最后守护者”的司法上,以村规民约为一定基础的立法,取之于民,用之于民。为充分发挥村规民约的作用,实现村规民约与国家法的共同发展,推进法治建设进程,因此本文提出在现代法治建设的背景下对村规民约进行研究分析。本文运用分析和综合等学习方式,参阅了大量参考文献和研究数据,通过整理和分析,从法理学的角度形成了对村规民约的系统理解,下面用五个部分具体描述。第一部分是绪论,介绍了论文的选题背景和选题价值,由党的会议关于依法治国的的发展历程引出本题的法治建设背景,通过对比传统民间法的研究重点,以此介绍本文的创新之处。第二部分对村规民约基本内容的概述,介绍了村规民约的历史变迁、传统村规民约的含义以及现代法治建设背景下村规民约新的含义和新的发展。第三部分是对村规民约的功能分析。首先是弥补国家立法的功能,这也是国家法在农村特殊环境下无法面面俱到而出现村规民约的原因;再者是村规民约的实施促进了国家法律的实施,体现了村规民约存在的合理性;此外,村规民约不仅对外作用巨大,其对自身农村社会建设管理也起很大推进作用;村规民约作为国家法与农村社会的桥梁,其传承了农村社会的优良传统以契合国家法的实施。第四部分介绍当前村规民约存在的主要问题以及对出现这一系列问题的原因进行分析。第五部分对当前村规民约出现的问题提出一些自己的建议以及在法治建设背景下对村规民约进行体系重构的分析。希望通过本文对村规民约的分析研究,在传统研究的基础上进一步理解村规民约与国家法律的相互关系,从而科学建设村规民约,完善社会主义法治建设,使传统民间法与现代法治精神和谐统一、基层自治与与国家管理相辅相成,切实村规民约在社会主义法治建设中发挥重要作用,为全面推进依法治国提供有益的借鉴。
[Abstract]:The village rules and regulations have existed in ancient times, from the ancient "Xiang covenant" to the villager autonomy constitution under the construction of modern rule of law, they all play a very important role in the social governance at the grass-roots level. Professor Xie Hui mentioned in his "three Dimensions of Folk Law in the role of the Rule of Law" that the state has three functions: "deliberative, administrative and judicial", which are used to create rules for the order of communication, whether national law or folk norms. All should be in these three directions for the establishment and maintenance of the order of the rule of law. As a typical representative of folk law, the village rules and regulations should legislate spontaneously for the main body of the rural villagers and provide useful reference for the establishment of the formal system of the country. They even directly provide the country with formal normative resources; administratively apply those rules which are not recognized by the law and are effective in practice to the settlement of administrative activities; and in the administration of justice as the "last guardian" of the law, With the village rules and regulations as a certain basis of legislation, to take the people, the use of the people. In order to give full play to the role of village rules and regulations, to realize the common development of village rules and state law, and to promote the process of building the rule of law, this paper puts forward the research and analysis of village rules under the background of modern rule of law construction. In this paper, by means of analysis and synthesis, we refer to a large number of references and research data, and form a systematic understanding of village rules and regulations from the angle of jurisprudence through collation and analysis, which are described in five parts below. The first part is the introduction, which introduces the background and value of the selected topic, leads to the background of the rule of law by the development of the Party meeting on the rule of law, and compares the research focus of the traditional folk law. This paper introduces the innovation of this article. The second part summarizes the basic contents of the village rules and regulations, introduces the historical changes of the village rules and regulations, the meaning of the traditional village rules and regulations, and the new meaning and new development of the village rules and regulations under the background of the construction of the modern rule of law. The third part is the function analysis of village rules and regulations. The first is to make up for the function of the national legislation, which is also the reason why the state law can not be all-encompassing in the special rural environment. Moreover, the implementation of the village rules and regulations promotes the implementation of the national laws. It reflects the rationality of the existence of village rules and regulations; in addition, village rules not only play a great role in promoting the management of rural social construction, but also play a great role in promoting their own rural social construction, as a bridge between the state law and rural society, the village rules and regulations are used as a bridge between the state law and the rural society. It inherits the fine tradition of rural society in line with the implementation of national law. The fourth part introduces the main problems existing in the village rules and analyzes the causes of these problems. In the fifth part, the author puts forward some suggestions on the problems of the village rules and regulations and analyses the reconstruction of the village rules system under the background of the rule of law construction. It is hoped that through the analysis and study of village rules and regulations in this paper, we can further understand the relationship between village rules and national laws on the basis of traditional research, so as to scientifically construct village rules and improve the socialist legal construction. Make the traditional folk law and the spirit of modern rule of law harmoniously unify, the grass-roots autonomy and the national management complement each other, the village rules and regulations play an important role in the construction of the socialist rule of law, and provide useful reference for promoting the rule of law in an all-round way.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D921.8

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