论民主失误的法治化补救
发布时间：2018-09-19 10:14
【摘要】： 民主的失误,是指由于多种多样的原因使得民主实践的过程、结果与民主的科学性要求或者民主的目标之间出现了偏差,导致了民主实践的过失与错误。民主的失误包含民主的失败,研究民主的失误自然包含对民主的失败的研究。民主失误的补救,是指对民主实践中的过失与错误,通过采取各种措施对其加以救助或弥补,从而使民主的实践走向正确的道路或者补偿民主失误造成的不利后果,最终目的在于减少甚至避免不应有的民主失误,以确保民主的实践与民主的科学性要求或者目标之间的差距逐步缩小,甚至与民主的科学性要求或目标合一。 民主失误的法治化补救,是指通过法治化的方式对民主实践过程中的民主失误进行弥补和挽回。通过良法的制定、调整与实施对不同的民主失误加以补救,从而推动民主实践在补救民主失误的过程中向民主的科学性要求或者目标前进。研究民主失误的法治化补救,其意义主要体现在:拓展研究民主问题的视角,深化对法的功能与价值的认识,完善民主的法治化路径,丰富法学与政治学理论,推动民主实践的理性发展,充实评估民主的标准与方式。 民主实践中的失误主要表现在:社会秩序的混乱,决策效能低下,公民权利受到侵害,多数人的暴政,少数人的集权等。民主实践中出现失误的主要原因在于:民主认识上出现偏差,民主基础与条件的不足,民主目标的设定不当,民主规则的缺失与无效,公共权力不受有效制约,正当程序的缺位等。 民主失误的法治化补救的可能性主要在于:法能够提供稳定的社会秩序,法能够提高民主的效能,法能够保障公民权利,法能够制约公权力,法能够提供修正民主失误的正当程序等。民主失误的法治化补救具有一定的相对性:并非所有的民主失误都能够得到补救,法治化并不是补救民主失误的唯一路径,民主失误的法治化补救方式并不总是有效的。 法律通过保障公民权利补救民主失误。民主失误与公民权利之间存在密切的联系,公民权利受到侵害是民主失误的表现或者后果,它还会造成民主的其他失误。法律保障公民权利补救民主失误的可能性在于,法律保障公民权利可以纠正公权力滥用、使社会无序趋于有序和提高民主的效能。法律保障公民权利以补救民主失误的基本方式在于公民权利的法律确认和法律救济。 法律通过制约公权力补救民主失误。民主失误与公共权力之间存在密切的联系,公共权力被滥用是民主失误的表现或者后果,它可能会造成民主的其他失误。法律通过制约公权力补救民主失误的可能性在于,法律制约权力可以救济公民权利、使社会无序趋于有序和提高民主的效能。法律制约权力以补救民主失误的基本方式在于权力的法律配置、法律监督、法律责任与政治责任。 正当法律程序是民主失误的法治化补救的一条重要路径。法律以正当程序补救民主失误的可能性在于,正当法律程序可以纠正公权力滥用、纠正社会无序与提高民主效能和救济公民权利。法律以正当程序补救民主失误的基本前提是程序共识与程序公开,法律以正当的立法、司法、行政以及选举程序补救民主失误。 违宪审查是民主失误的法治化补救的重要途径。民主宪法的存在是违宪审查补救民主失误的前提。法律以违宪审查补救民主失误的可能性在于,违宪审查可以纠正公权力滥用以及救济公民权利。违宪审查通过保障宪法的实施和审查法律的合宪性补救民主的失误。 中国在民主实践的过程中同样也存在着失误。中国的民主失误有着独特性,它的出现有着独特的思想与文化上的原因,比如缺少孕育学术与思想自由的人文环境等。新中国成立前民主失误的法治化补救进行了一些尝试,但大都归于失败。新中国成立后,民主失误的法治化补救在经历一系列挫折后逐步摸索出了一些比较成功的路径,总结这些路径可以发现一些民主失误的法治化补救的基本规律:建立和完善公民政治权利保障的法治机制,建立和完善政治权力的法律制约机制,设置完善的补救民主失误的法律程序等。总之,宪政是中国民主失误的法治化补救的基础和前提。研究民主失误的法治化补救对于中国的民主政治建设有着重要的意义,这些意义体现在:深化对社会主义民主与法治之间关系的认识,完善具有中国特色的社会主义民主的具体实现形式,预防社会主义民主的未来可能性失误。
[Abstract]:The failure of democracy refers to the process of democratic practice caused by various reasons and the deviation between the result and the scientific requirement of democracy or the goal of democracy, which leads to the fault and error of democratic practice. The remedy of mistakes refers to the remedy of mistakes and mistakes in democratic practice by taking various measures to help or make up for them, so as to make the practice of democracy go to the right road or compensate for the adverse consequences caused by democratic mistakes. The ultimate aim is to reduce or even avoid undesirable democratic mistakes so as to ensure the practice and democracy of democracy. The gap between scientific requirements or objectives is gradually narrowed, even in harmony with democratic scientific requirements or objectives.
The rule of law remedy of democratic errors refers to the remedy and recovery of democratic errors in the process of democratic practice by means of rule of law. Through the enactment of good laws, the adjustment and implementation of different democratic errors can be remedied, so as to promote democratic practice in the process of remedying democratic errors to democratic scientific requirements or goals. The significance of studying the remedy of democratic errors by rule of law lies in: expanding the perspective of studying democratic problems, deepening the understanding of the function and value of law, perfecting the path of democratic legalization, enriching the theory of law and politics, promoting the rational development of democratic practice, and enriching the standards and methods of evaluating democracy.
The mistakes in democratic practice are mainly manifested in the disorder of social order, the inefficiency of decision-making, the infringement of civil rights, the tyranny of the majority and the centralization of the minority, etc. Lack and invalidity, public power is not effectively restricted, and due process is absent.
The possibility of legal remedy for democratic errors lies in that law can provide a stable social order, law can improve the efficiency of democracy, law can protect civil rights, law can restrict public power, law can provide a proper procedure to correct democratic errors, etc. All democratic mistakes can be remedied. Rule of law is not the only way to remedy democratic mistakes. The remedy of democratic mistakes by rule of law is not always effective.
The law remedies democratic mistakes by guaranteeing civil rights. There is a close relationship between democratic mistakes and civil rights. The infringement of civil rights is the manifestation or consequence of democratic mistakes, and it also causes other democratic mistakes. The possibility of remedying democratic mistakes by guaranteeing civil rights by law is that civil rights can be corrected by guaranteeing civil rights by law. The abuse of public power leads to disorder of society and improves the efficiency of democracy.
Law can remedy democratic errors by restricting public power. There is a close relationship between democratic errors and public power. Abuse of public power is a manifestation or consequence of democratic errors. It may cause other democratic errors. The basic ways of restricting power to remedy democratic mistakes lie in the legal allocation of power, legal supervision, legal responsibility and political responsibility.
Due process of law is an important way to remedy democratic errors. The possibility of remedying democratic errors by due process of law lies in that due process of law can correct abuse of public power, correct social disorder, improve democratic efficiency and relieve civil rights. Orderly consensus and procedural openness, the law remedies democratic errors by legitimate legislation, judicature, administration and electoral procedures.
Constitutional review is an important way to remedy democratic errors by law. The existence of a democratic constitution is a prerequisite for constitutional review to remedy democratic errors. The constitutionality of the law remedies the faults of democracy.
There are also mistakes in the process of democratic practice in China. China's democratic mistakes have their own peculiarities, and their appearance has unique ideological and cultural reasons, such as the lack of a humanistic environment for academic and ideological freedom. After the founding of the People's Republic of China, the legal remedy of democratic errors has gradually explored some relatively successful paths after a series of setbacks. Summarizing these paths, we can find some basic laws of the legal remedy of democratic errors: establishing and improving the legal mechanism of protecting citizens'political rights, and establishing and perfecting the legal system of political power. In a word, constitutionalism is the foundation and prerequisite for the legalization of China's democratic errors. It is of great significance to study the legalization of democratic errors for China's democratic political construction, which is reflected in deepening the relationship between socialist democracy and the rule of law. To understand and perfect the concrete realization forms of socialist democracy with Chinese characteristics and prevent the possible future mistakes of socialist democracy.
【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】：D082
本文编号：2249837
[Abstract]:The failure of democracy refers to the process of democratic practice caused by various reasons and the deviation between the result and the scientific requirement of democracy or the goal of democracy, which leads to the fault and error of democratic practice. The remedy of mistakes refers to the remedy of mistakes and mistakes in democratic practice by taking various measures to help or make up for them, so as to make the practice of democracy go to the right road or compensate for the adverse consequences caused by democratic mistakes. The ultimate aim is to reduce or even avoid undesirable democratic mistakes so as to ensure the practice and democracy of democracy. The gap between scientific requirements or objectives is gradually narrowed, even in harmony with democratic scientific requirements or objectives.
The rule of law remedy of democratic errors refers to the remedy and recovery of democratic errors in the process of democratic practice by means of rule of law. Through the enactment of good laws, the adjustment and implementation of different democratic errors can be remedied, so as to promote democratic practice in the process of remedying democratic errors to democratic scientific requirements or goals. The significance of studying the remedy of democratic errors by rule of law lies in: expanding the perspective of studying democratic problems, deepening the understanding of the function and value of law, perfecting the path of democratic legalization, enriching the theory of law and politics, promoting the rational development of democratic practice, and enriching the standards and methods of evaluating democracy.
The mistakes in democratic practice are mainly manifested in the disorder of social order, the inefficiency of decision-making, the infringement of civil rights, the tyranny of the majority and the centralization of the minority, etc. Lack and invalidity, public power is not effectively restricted, and due process is absent.
The possibility of legal remedy for democratic errors lies in that law can provide a stable social order, law can improve the efficiency of democracy, law can protect civil rights, law can restrict public power, law can provide a proper procedure to correct democratic errors, etc. All democratic mistakes can be remedied. Rule of law is not the only way to remedy democratic mistakes. The remedy of democratic mistakes by rule of law is not always effective.
The law remedies democratic mistakes by guaranteeing civil rights. There is a close relationship between democratic mistakes and civil rights. The infringement of civil rights is the manifestation or consequence of democratic mistakes, and it also causes other democratic mistakes. The possibility of remedying democratic mistakes by guaranteeing civil rights by law is that civil rights can be corrected by guaranteeing civil rights by law. The abuse of public power leads to disorder of society and improves the efficiency of democracy.
Law can remedy democratic errors by restricting public power. There is a close relationship between democratic errors and public power. Abuse of public power is a manifestation or consequence of democratic errors. It may cause other democratic errors. The basic ways of restricting power to remedy democratic mistakes lie in the legal allocation of power, legal supervision, legal responsibility and political responsibility.
Due process of law is an important way to remedy democratic errors. The possibility of remedying democratic errors by due process of law lies in that due process of law can correct abuse of public power, correct social disorder, improve democratic efficiency and relieve civil rights. Orderly consensus and procedural openness, the law remedies democratic errors by legitimate legislation, judicature, administration and electoral procedures.
Constitutional review is an important way to remedy democratic errors by law. The existence of a democratic constitution is a prerequisite for constitutional review to remedy democratic errors. The constitutionality of the law remedies the faults of democracy.
There are also mistakes in the process of democratic practice in China. China's democratic mistakes have their own peculiarities, and their appearance has unique ideological and cultural reasons, such as the lack of a humanistic environment for academic and ideological freedom. After the founding of the People's Republic of China, the legal remedy of democratic errors has gradually explored some relatively successful paths after a series of setbacks. Summarizing these paths, we can find some basic laws of the legal remedy of democratic errors: establishing and improving the legal mechanism of protecting citizens'political rights, and establishing and perfecting the legal system of political power. In a word, constitutionalism is the foundation and prerequisite for the legalization of China's democratic errors. It is of great significance to study the legalization of democratic errors for China's democratic political construction, which is reflected in deepening the relationship between socialist democracy and the rule of law. To understand and perfect the concrete realization forms of socialist democracy with Chinese characteristics and prevent the possible future mistakes of socialist democracy.
【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】：D082
【引证文献】
相关博士学位论文 前1条
1 邱晓里;民主实现的法治机制[D];中共中央党校;2012年
，本文编号：2249837
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