民间组织的法治功能研究
发布时间：2018-07-24 11:14
【摘要】： 法治的动力来自于国家,但更来自于社会,而且社会的力量对法治的推动更为持久。民间组织作为社会力量的组织者对法治的影响是积极的,民间组织作为社会发展的必然产物,其对法治的贡献是不可替代的。随着社会与国家的分离,社会作为与国家相对的力量日益获得了自身地位和发展的独立性,但社会必须有自己的自治机制和自治组织,以此来整合民意,实现社会和谐有序发展,从而为民主政治的发展和法治实践提供深层的社会基础,否则只能是一盘散沙。法学研究特别是法律制度研究的主要内容是法律主体及其行为,社会力量的发展壮大必然会催生出大量的民间组织团体,民间组织与外界发生的大量社会行为当然应受到法律规范的调整。民间组织在现实社会生活中的重要主体地位及其活动形态决定了它必然是法学研究的问题所在,目前的研究也主要是从这一层面而言的,此不是本研究的重点。本研究更为关注的是民间组织能为社会发展提供有效组织载体,在整合民意,保障民权,实现对公权力的监督和制约乃至国家和社会互动方面发挥重要作用。研究民间组织不仅仅是微观层面的研究,更是宪政建构的重要内容,是深化法治理论研究和拓展市民社会理论研究的重要内容。因此,虽然民间组织本身还处于发展阶段,没有形成一种稳定的社会力量。但是,这种超前性关注是必要的,没有理论发展的前瞻性,就没有现实发展的导向性。 本论文从民间组织与法治构建的关系作为研究的切入点,将民间组织这一具体的社会角色提升到法治理想图景建构意义上的规范研究层面,进而论证民间组织对法治构建的积极意义。论文不仅从理性和逻辑的高度对民间组织与公民文化、民间组织与权力制约、民间组织与人权以及民间组织与公民参与四个方面对民间组织对法治的积极影响进行详尽研究。同时,论文还从民间组织自身存在异化的可能性;民间组织缺少相对于政府的独立性;民间组织全球化带来的挑战;民间组织发展模式的特殊性;民间组织自身的整合能力和诚信基础等角度详细探讨民间组织对法治的负面影响。通过对二者关系多角度、正反两方面的探讨,努力实现研究的中道的权衡。 本文的研究是基于目前法治建设的诸多不足的现状作为思考的起点而展开行文架构的,中国目前法治建设的现状和遇到的困难直观层面反映为现实中背离法治的行为,但根源在于法治理论自身的不完善。而中国目前的法治理论研究还是不自足的,不能满足法治发展的需要,迫切需要对原有法治理论进行反思,完善和改进现有法治理论,用以指导现时的法治实践,有效地将法治方案具体落实到现实的实践主体及其行动之上,从而使法治建构理论一定程度地抛开一般性讨论而转换为可欲的实践路径,这是本文的研究初衷。民间组织即非政府组织的研究主要是借鉴于西方的,民间组织的理论基础——市民社会理论有其独特的发展路径和现实思考,因此,我们通过对中西方的对比,不仅可以获取中国法治发展在建构意义上的未来努力方向;而且可以为我们提供一个独特的反思视角,即民间组织在中国语境下的现实可操作性。 本论文的创新主体显现在:以往的实证研究立足于中国的国情,希望从中国的实际案例中探讨民间组织的现状和问题,发现西方意义上的民间组织,以此来构建中国的市民社会。本论文在肯定实证研究的重大积极意义的同时,认为亦很有必要对中国民间组织的法治功能进行理论层面上的抽象研究,对目前中国的政府主导型法治构建模式提供反思和借鉴,另外也有利于学术上的理论与实践的平衡。本研究正是力图摆脱现有局面,选取了民间组织的法治功能作为研究视角,进入深层论述。从民间组织与权力制约、公民参与、人权保障、公民文化四个路径进行研究,力求形成一套相对完整的民间组织与法治关系理论。我们认为不论研究成功与否,首先就民间组织与法治关系的研究架构这一层面而言,是具有理论的创新性的。法学本身不是一门狭隘的学科,尤其是在学科划分日益细密的今天,任何学术研究都不能局限于自己的学术领域,而是应当吸收相互的研究成果和研究方法,做到你中有我,我中有你,方为学术研究的上乘境界,否则只能在原地打圈圈。民间组织与法治的研究关系更应如此,从民间组织作为法律的主体和调整对象而言,民间组织属于法学范畴;从民间组织是市民社会的重要组织载体,民间组织与社会整合而言,民间组织属于社会学研究范畴;从民间组织作为国家的重要监督制约主体而言,民间组织属于政治学范畴。凡此种种,说明民间组织与法治关系研究界定为跨学科研究更为妥当,那么,如果从法学角度研究民间组织与法治的关系就必须吸收相关学科的研究方法和成果。而且从目前的研究成果来看,更多的集中于政治学和社会学领域,法学范畴的研究主要侧重于民间组织的法律规制层面。本研究拟在相关学科研究成果的基础上,以法学研究为主线,穿插政治学、社会学等相关学科研究方法,力求用政治学、社会学的方法研究法学问题,争取使研究成果更全面、客观、丰满。
[Abstract]:The motive force of the rule of law comes from the state, but it comes from the society, and it is more from the society, and the power of the society is more lasting for the rule of law. The influence of the civil organization as a social force organizer on the rule of law is positive. As an inevitable product of the social development, the contribution of the folk organization is irreplaceable. As a force that is relative to the state, it will gain the independence of its own status and development, but the society must have its own self-government mechanism and self-government organization, so as to integrate the public opinion and realize the harmonious and orderly development of the society, thus providing a deep social foundation for the development of democracy and the practice of the rule of law. Otherwise, the law can only be scattered. The main content of the study, especially the legal system, is the legal subject and its behavior. The development and expansion of the social forces will inevitably lead to the emergence of a large number of civil organizations. The large number of social behavior of the civil organizations and the outside world should of course be adjusted by the legal norms. The form of activity determines that it is the problem of legal research. The current research is mainly from this level. This is not the focus of this study. This study is more concerned with the fact that the civil organizations can provide effective organizational carrier for social development, integrate public opinion, guarantee civil rights, and realize the supervision and restriction of public power and even the country. The study of the interaction between home and society plays an important role. The study of folk organizations is not only a microscopic study, but also an important content of constitutional construction. It is an important content of deepening the research on the theory of the rule of law and expanding the theoretical research of the civil society. Therefore, although the civil organization itself is still at the stage of development, it has not formed a stable social force. However, this kind of advance concern is necessary. Without the foresight of theoretical development, there is no guidance for realistic development.
This paper, from the relationship between the civil organization and the construction of the rule of law, as the breakthrough point of the study, promotes the specific social role of the civil organization to the normative research level of the construction of the ideal picture of the rule of law, and then demonstrates the positive significance of the civil organizations to the construction of the rule of law. Culture, civil organizations and power constraints, civil organizations and human rights as well as civil organizations and citizen participation in four aspects of the positive impact of civil organizations on the rule of law in detail. At the same time, the paper also from the possibility of the alienation of the private organization itself; the lack of civil organizations relative to the independence of the government; the globalization of civil organizations brought about. Challenge, the particularity of the development model of civil organization, the integration ability and the foundation of the civil organization, the negative influence of the civil organization on the rule of law is discussed in detail. Through the discussion of the relationship between the two parties, the positive and negative two aspects are discussed, and the trade-off of the middle of the study is achieved.
The research of this article is based on the current situation of the legal construction of the rule of law as the starting point of the thinking. The present situation of the construction of the rule of law in China and the difficulty of the encounter are reflected in the practice of deviating from the rule of law in reality, but the root lies in the imperfection of the theory of the rule of law itself. It is not self-sufficient to meet the needs of the development of the rule of law. It is urgent to reflect on the original rule of law theory, improve and improve the existing rule of law theory, to guide the practice of the rule of law, and effectively put the rule of law into practical subjects and actions, so that the theory of the rule of law is to a certain extent. This is the original purpose of this study. The research of non-governmental organizations, i.e. non-governmental organizations, is mainly based on the western and the theoretical basis of the civil society. The theory of civil society has its own unique development path and realistic thinking. Therefore, we can not only obtain the middle and Western countries through the comparison of China and the West. The development of the country's rule of law in the construction of the future direction of construction, and can provide us with a unique perspective of reflection, that is, the realistic operability of the civil organizations in the Chinese context.
The main innovation of this paper is as follows: the previous empirical research is based on the national conditions of China, and hopes to explore the status and problems of the civil organizations from the actual cases in China, and find the civil organizations in the Western sense to build China's civil society. It is necessary to carry out an abstract study on the legal function of the Chinese folk organizations and provide a reflection and reference to the current Chinese government led rule of law construction model, and also to the balance of academic theory and practice. This study is trying to get rid of the existing situation and select the function of the rule of law of the civil organizations as a study. From the four paths of civil organization and power restriction, citizen participation, human rights protection and citizen culture, we try to form a relatively complete set of theory of the relationship between civil organizations and the rule of law. We think that whether the research is successful or not, the first is the research framework of the relationship between the folk organization and the rule of law. It is innovative in theory. Law is not a narrow subject itself, especially in the day when the division of discipline is becoming more and more fine. Any academic research can not be limited to its own academic field, but should absorb the research results and research methods of each other. The research relationship between the civil organization and the rule of law should be more so. From the civil organization as the subject of the law and the object of adjustment, the folk organizations belong to the legal category; the folk organizations are the important carrier of the civil society, the folk organizations and the society are integrated, and the folk organizations belong to the category of sociological research; from the folk organizations, the folk organizations are the category of the sociological research; As an important subject of supervision and restriction of the country, the organization belongs to the category of political science. All this, it is more appropriate for the study of the relationship between the civil organization and the rule of law as a cross disciplinary study. From the present research results, more concentrated in the field of political and sociological studies. The study of the category of law mainly focuses on the legal regulation level of the civil organizations. On the basis of the research results of relevant disciplines, this study intends to apply the research methods of political science, social science and other related subjects, and strive to use politics, society, and other related subjects on the basis of the research results of relevant disciplines. We will study methods of law and strive to make the research results more comprehensive, objective and plentiful.
【学位授予单位】：中共中央党校
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D922.182.1
本文编号：2141203
[Abstract]:The motive force of the rule of law comes from the state, but it comes from the society, and it is more from the society, and the power of the society is more lasting for the rule of law. The influence of the civil organization as a social force organizer on the rule of law is positive. As an inevitable product of the social development, the contribution of the folk organization is irreplaceable. As a force that is relative to the state, it will gain the independence of its own status and development, but the society must have its own self-government mechanism and self-government organization, so as to integrate the public opinion and realize the harmonious and orderly development of the society, thus providing a deep social foundation for the development of democracy and the practice of the rule of law. Otherwise, the law can only be scattered. The main content of the study, especially the legal system, is the legal subject and its behavior. The development and expansion of the social forces will inevitably lead to the emergence of a large number of civil organizations. The large number of social behavior of the civil organizations and the outside world should of course be adjusted by the legal norms. The form of activity determines that it is the problem of legal research. The current research is mainly from this level. This is not the focus of this study. This study is more concerned with the fact that the civil organizations can provide effective organizational carrier for social development, integrate public opinion, guarantee civil rights, and realize the supervision and restriction of public power and even the country. The study of the interaction between home and society plays an important role. The study of folk organizations is not only a microscopic study, but also an important content of constitutional construction. It is an important content of deepening the research on the theory of the rule of law and expanding the theoretical research of the civil society. Therefore, although the civil organization itself is still at the stage of development, it has not formed a stable social force. However, this kind of advance concern is necessary. Without the foresight of theoretical development, there is no guidance for realistic development.
This paper, from the relationship between the civil organization and the construction of the rule of law, as the breakthrough point of the study, promotes the specific social role of the civil organization to the normative research level of the construction of the ideal picture of the rule of law, and then demonstrates the positive significance of the civil organizations to the construction of the rule of law. Culture, civil organizations and power constraints, civil organizations and human rights as well as civil organizations and citizen participation in four aspects of the positive impact of civil organizations on the rule of law in detail. At the same time, the paper also from the possibility of the alienation of the private organization itself; the lack of civil organizations relative to the independence of the government; the globalization of civil organizations brought about. Challenge, the particularity of the development model of civil organization, the integration ability and the foundation of the civil organization, the negative influence of the civil organization on the rule of law is discussed in detail. Through the discussion of the relationship between the two parties, the positive and negative two aspects are discussed, and the trade-off of the middle of the study is achieved.
The research of this article is based on the current situation of the legal construction of the rule of law as the starting point of the thinking. The present situation of the construction of the rule of law in China and the difficulty of the encounter are reflected in the practice of deviating from the rule of law in reality, but the root lies in the imperfection of the theory of the rule of law itself. It is not self-sufficient to meet the needs of the development of the rule of law. It is urgent to reflect on the original rule of law theory, improve and improve the existing rule of law theory, to guide the practice of the rule of law, and effectively put the rule of law into practical subjects and actions, so that the theory of the rule of law is to a certain extent. This is the original purpose of this study. The research of non-governmental organizations, i.e. non-governmental organizations, is mainly based on the western and the theoretical basis of the civil society. The theory of civil society has its own unique development path and realistic thinking. Therefore, we can not only obtain the middle and Western countries through the comparison of China and the West. The development of the country's rule of law in the construction of the future direction of construction, and can provide us with a unique perspective of reflection, that is, the realistic operability of the civil organizations in the Chinese context.
The main innovation of this paper is as follows: the previous empirical research is based on the national conditions of China, and hopes to explore the status and problems of the civil organizations from the actual cases in China, and find the civil organizations in the Western sense to build China's civil society. It is necessary to carry out an abstract study on the legal function of the Chinese folk organizations and provide a reflection and reference to the current Chinese government led rule of law construction model, and also to the balance of academic theory and practice. This study is trying to get rid of the existing situation and select the function of the rule of law of the civil organizations as a study. From the four paths of civil organization and power restriction, citizen participation, human rights protection and citizen culture, we try to form a relatively complete set of theory of the relationship between civil organizations and the rule of law. We think that whether the research is successful or not, the first is the research framework of the relationship between the folk organization and the rule of law. It is innovative in theory. Law is not a narrow subject itself, especially in the day when the division of discipline is becoming more and more fine. Any academic research can not be limited to its own academic field, but should absorb the research results and research methods of each other. The research relationship between the civil organization and the rule of law should be more so. From the civil organization as the subject of the law and the object of adjustment, the folk organizations belong to the legal category; the folk organizations are the important carrier of the civil society, the folk organizations and the society are integrated, and the folk organizations belong to the category of sociological research; from the folk organizations, the folk organizations are the category of the sociological research; As an important subject of supervision and restriction of the country, the organization belongs to the category of political science. All this, it is more appropriate for the study of the relationship between the civil organization and the rule of law as a cross disciplinary study. From the present research results, more concentrated in the field of political and sociological studies. The study of the category of law mainly focuses on the legal regulation level of the civil organizations. On the basis of the research results of relevant disciplines, this study intends to apply the research methods of political science, social science and other related subjects, and strive to use politics, society, and other related subjects on the basis of the research results of relevant disciplines. We will study methods of law and strive to make the research results more comprehensive, objective and plentiful.
【学位授予单位】：中共中央党校
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D922.182.1
【引证文献】
相关博士学位论文 前1条
1 王红梅;商会与中国法制近代化[D];华东政法大学;2010年
，本文编号：2141203
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