【作者】 郑人豪；

【导师】 应松年；

【作者基本信息】 中国政法大学 ， 宪法学与行政法学， 2007， 博士

【摘要】 作为村民解决人民公社解体之后所产生的“权力真空”现状而自发进行的一项制度试验,村民自治一方面满足了农民的民主需求,而受到农民的普遍欢迎;另一方面,其满足了国家的秩序重建和维护稳定的治理需要,也受到党和政府的高度重视。村民自治亦因此演变为我国一项正式的制度安排。村民自治得以在中华大地上落地生根,并不断发展,离不开传统社会的“路径依赖”。在传统社会中,国家权力由于统治技术和信息技术的局限不能够完全控制乡土社会,而乡土社会又由于各种条件的限制必须结合在一起才能够应付生存的挑战。因此传统中国的乡土社会能够形成一个个自治的小共同体,乡土社会精英依据熟人社会形成的规则进行内部治理。近代以来的社会大变革打破了传统社会的自治秩序。中国共产党在革命过程中推进的土地改革运动则从根本上了瓦解了传统乡土社会自治的基础。于是,探索新的治理方式成为建国后党和政府的首要任务。村民自治正是在此背景下产生,并因符合国家的治理需要而从一项群众的自发实践转变为政府大力推崇的制度实践。村民自治的制度建构主要是以民主理论为依据。然而,在现代社会,传统民主理论本身面临诸多质疑。共和主义民主无法为公民个人权利提供足够保障,而自由主义民主则无法为公权力的建构与运行提供合法性依据。因此,无论是以共和主义民主,还是以自由主义民主为依据而构建村民自治制度均不可避免二者本身的缺陷。西方日渐兴起的协商民主理论恰好可以为村民自治的制度变革提供理论支撑。一项制度安排应当与其所处的社会环境相适应。村民自治作为一项制度实践,产生于二十多年前。二十多年来,农村的社会政治经济环境均发生了翻天覆地的变化。受市场经济的影响,国家、乡镇和村民各具不同的利益诉求。正是由于利益诉求的不同和制度构建本身的缺陷,实践中村民自治出现了制度变异。结合农村社会出现的新变化,结合党和政府新农村建设的政策,村民自治应当在诸多方面实现变革。村民自治的制度运行不仅要在宏观层面应对社会环境变化和理论更新的挑战,更需在微观制度层面进行具体的制度变革。以上述社会背景和理论依据为支撑,笔者深入分析了村民自治的制度变革之道。首先,笔者对作为基层群众自治组织的村民委员会地位的规范性考察。尽管宪法将村民委员会定位于基层群众自治组织,但《村民委员会组织法》的制度安排和其在实践中承载的具体职能均与村委会的“社会自治组织”性质不符。要恢复其“社会自治组织”的性质,必须卸载村委会与该性质不相关的国家职能。其次,对村民自治的运行机制进行具体分析。笔者分别对民主选举、民主决策、民主管理和民主监督进行了深入分析。在对它们各自的内容,存在的问题以及产生原因进行分析的基础上,笔者结合前文的协商民主理论分析了各自运行方式应当采取的制度改进措施。再次,对村民自治生存空间的探讨。村民自治制度要想获得较大的发展空间,必须妥善处理两个方面的关系,即国家与社会的关系和自治组织与基层党组织的关系。对于前者,笔者首先分析了实在法背景下的乡村关系,以及实践中乡村关系存在的问题,并探讨了其具体原因和可能的变革之道。实在法关于乡村关系的定位值得重新思考。理想的模式应当是国家公权力与社会公权力基于公务的不同内容合作提供。对于“两委”关系,笔者分析指出,二者冲突的根源在于它们各自拥有不同的合法性权力来源。实践中出现了解决二者之间冲突的诸多方式。笔者认为,区分政务与村务,实现合作治理是解决两委关系的理想之道。再再次,分析了提升村民自治品格的根本之道。要使村民自治制度真正成为村民进行自我管理、自我服务的制度设计,真正实现选举民主和协商民主的有机统一,必须在政治上彻底改变村民那种孤立分散的状态。这就需要通过高度理性化的社会组织,将孤立分散的村民组织起来,使之能够通过集体行动,参与公共事务,影响公共权力。最后,分析了村民自治的司法保障。随着经济体制的转型、政治民主的扩大以及人民权利意识的增强,在农村,涉及村民自治的各种纠纷不断增加。对于村民自治中的不同纠纷应当采取不同的解决方式。但司法应当成为解决纠纷的最权威和最终方式。村民自治的司法保障在技术上还存在一定障碍,需要通过理论拓展来完善我国的公权力体制。更多还原

【Abstract】 As villagers’spontaneous yet systematic efforts to respond to the“power vacuum”after the disintegration of people’s communion, villager self-governance is widely welcomed by villagers because it can meet their demand for democracy. At the same time, it is also attached great importance by the Party and government since it can meet the country’s demand of reconstruction of order and maintenance of stability. Therefore, villager self-governance has been becoming an official institutional arrangement in China.The appearance and development of villager self-governance in China cannot do without traditional society’s“route dependence”. In the Chinese traditional society, state power could not have full control over the rural society due to deficit of ruling and information techniques, but as a result of various official restrictions, the rural society felt an inheriting need of combining together in order to face challenges to survive. Thus China’s traditional rural society could form small autonomous communities, in which elite countrymen could operate internal management according to some principles of society of acquaintances. However, the social revolutions in modern times broke the autonomous order gradually developed in traditional society. The Land Reform launched by the Communist Party of China disintegrated the basis of traditional rural society’s social self-governance from its root. Therefore, exploration of new measure of governance became a primary task of the Party and government after the foundation of new China. Villager self-governance came into birth against such a background, and because it accords with China’s ruling demand, it has been transferred from a public spontaneous practice into a systematic effort, which has been vigorously pushed forward by government.The systematic construction of villager self-governance is mainly based upon the theory of democracy. However, in modern society, the traditional theory of democracy itself is faced with many doubts. Republic Democracy cannot supply enough guarantee for citizens’individual rights while Liberalist Democracy cannot give legitimate basis of the construction of public power. Thus villager self-governance system established based upon either republic or liberal democracy will inevitably have defects. The theory of Deliberative Democracy that is rising in the western world just can provide the systematic reform of villager self-governance with theoretic support. A systematic arrangement should be adapted to its own societal situation. As a systematic practice, villager self-governance appeared 20 years ago in China. In these 20 years, social, political and economic environment in rural areas have taken earth-shaking changes. Impacted by market economy, the state, county and villagers have been seeking different interests. Just because of different interest pursuits and defects of the system itself, there are some abnormal phenomena appearing in the practice of villager self-governance. Considering new changes in villages and the Party and government’s policy of constructing new villages, villager self-governance must be reformed in many aspects.The operation of the system of villager self-governance not only has to face challenges of social environmental changes and theory updating in the macroscopic level, but also demands for concrete reforms in the microscopic level. Supported by the aforesaid social background and theory, this dissertation tries to analyze the direction of the reform of villager self-governance.In the first place, the author observes the villagers committees that are the autonomous organizations of grass-root people. Although the Constitution prescribes that the villagers committees are the autonomous organizations of grass-root people, the systematic arrangement of the Organic Law of the Villagers Committees and the concrete functions of the villagers committees in practice do not accord with their property of“social autonomous organizations”. State functions that are not relevant to this property should be removed from villagers committees.Secondly, the author tries to analyze operational mechanisms of villager self-governance. The author analyzes the democratic election, democratic decision, democratic management, and democratic supervision. On the base of analysis of their respective contents, existing problems and causes, this paper further analyzes systematic measures of improvement of their respective operation manners.Thirdly, this paper discusses the survival space of villager self-governance. If the system of villager self-governance wants to gain larger space of development, it must properly deal with two pairs of relations, which are the relation between state and society, and the relation between autonomous organizations and grass-root Party organizations. As to the former, the author firstly analyzes the relation between counties and villages against the background of existing laws and regulations, and its problems in practice. At the same time, the author also discusses the problems’causes and possible methods of reform. The relation between counties and villages set in existing laws and regulations needs to be reconsidered. The ideal mode is that the public power and social power can cooperate with each other according to their different contents of public service. As to the relation between villagers committees and Party committees, the author points out that the root of their conflicts is that they have different sources of legitimacy. There are many measures to solve their conflicts in practice. The author believes that the realization of cooperative management is the ideal path of softening the intense between the two committees.Fourthly, this dissertation analyzes the fundamental way of elevating the quality of the villager self-governance. It argues that if the system of villager self-governance wants to become an authentic self-governance and self-service systematic design and realizes real election democracy and deliberative democracy, villagers’political isolation and decentralization should be fundamentally changed. Therefore, it is necessary to organize the individual villagers with highly rational social groups in order to participate in public affairs and influence public power through collective actions.At last, this dissertation analyzes the key issues relating to judicial safeguard of villager self-governance. With the change of economic system, expansion of political democracy and enhancement of people’s sense of rights, various disputes related to village self-governance are incessantly increasing. Disputes of different types should be solved with different means, but judicature should be the most authoritative and the ultimate way. The author has noted that there are still some substantial obstacles with respect to judicial safeguard of villager self-governance, and demonstrated that theoretical and institutional efforts are in a desperate need for further reform of judicial review system, among others, to effectively safeguard legal rights and interests in the context of village self-governance.更多还原