【作者】 刘晓源；

【导师】 肖金明；

【作者基本信息】 山东大学 ， 宪法学与行政法学， 2010， 博士

【摘要】 本文的结构内容皆围绕着论文主题财产权视角下的宪政生成展开。其中导论部分阐述了问题的由来与研究综述,第一章到第四章从各个方面阐析财产权视角下的宪政生成这一命题,第五章则回归中国问题,对中国财产权视角下宪政生成的具体问题进行总结与阐释。本文第一章首先对财产权概念做了一个系统的梳理,并对财产做了较详尽的释义,通过中西方观念的比较明确财产的内涵,进而对财产权概念进行阐释,分析了民法与宪法上财产权概念的异同。其后通过对宪政概念的中西方比较得出宪政是追求自由与权利的过程中,在民主制之上建立的约束与限制公共权力的消极性政治结构制度；它强调以限制权力为核心、以民主政治为前提、以法治为基石、以人权保障为目的。本章认为宪政制度是对人类社会的各种关系的规范,如政治关系、经济关系、社会管理关系等。在这些纷繁的社会关系背后,实质上是人与人之间的利益关系,这类利益关系的载体就是财产权。财产权既是人类不可或缺的自然权利,又是人类社会存续和发展的物质基础。财产因满足人类的生存与自由需要而存在,人类因财产的存在而得以存续。而财产利益的差别也使人类的各种关系演变成为一种利益博弈。民众出于捍卫财产权的需要,以及维护日益增长的多元化利益需求,自发组成了以经济利益为枢纽的市民社会组织,并与国家权力展开了持续性的博弈,逐渐形成了为宪法所确认的以议会制度或代表制为代表的政治协商妥协机制。人类社会的经济形态与社会形态,由此亦实现着由低级向高级并向文明时代的发展。第二章立足于静态的视角,阐述财产权对宪政生成的价值。这些价值集中体现在：第一,财产权作为生产力与生产关系的基础动力,促进了社会商品经济和市场经济的发展,不仅为宪政生成输送了财富资源,而且为宪政生成筑起了坚实的经济基础。第二,宪政的目的是保障人权；没有意志自治的自由人,宪政也就无从谈起。财产权作为担当人权体系中保障职责的基本权利,不但是人生存、自由的保障,更是使人独立于自然界、独立于社会其他人的凭借；无财产权,则无人权保障,则无独立而自由的人,宪政生成由而也成为泡影。第三,财产权能够抵制公权力的侵害,它设立起保护私域的坚固屏障,不但促进了社会私域自治的长足发展,也推动了市民社会与政治国家二元分立的形成。私域(市民社会)与公域(政治国家)中权利与权力冲突与抗衡的结果,确立了权利对权力的主导地位,重构了国家与公民的关系。而政府的公权力受制于财产权等私权利,也被视为是宪政生成的核心价值。第四,财产权推动了民主与法治的发展；财产权是产生近现代民主的重要动力,亦是法治建立所依赖的私权力量。因为财产权推动了民主与法治的发展,亦成为宪政(生成)所不可或缺的价值。第三章立足于动态视角,阐释财产权对宪政生成的主要作用机制。财产权对宪政生成的核心作用机制是借助财政立宪完成的。财产权通过对国家赋税的制约,实现了国家权力对公民权利的妥协,这一妥协的形成就是财政立宪主义。财政立宪主义在近代被称为财政议会主义,是国家与人民之间公法上财产关系的理念与原则。既包括政府获得财产和使用财产所有环节的宪法控制,又包括国家征税权与公民纳税义务的宪法证成,它通过对国家财政权与人民财产权关系的调整,树立了人民作为国家主人的地位。在财政立宪主义的框架下,国家的代议制民主与法治、限制政府权力、保护公民权利不受侵害等宪政内容应运而生。可以说,财政立宪主义实现的过程亦是宪政生成的过程。财产权对宪政生成或财政议会主义产生的作用机制集中表现在：第一,财产权推动了近现代公共财政体制的建立。公共财政通过对财政收入支出过程的强化管制,控制了公共权力的运作,规范了宪政生成的权力运行机制。第二,财产权促成了近代代议制民主的生成。代议制确立了财政立宪的有效形式,制定了财产权保护和财政管控的宪法和法律,构筑了宪政生成的民主政治与法治框架。第三,财产权推动了税收法定主义的形成。税收法定主义的形成,又建构起了财产权保护的坚固防线,保障了公民以财产权为基础的人权体系,维系了宪政的目的。第四,财产权促进了财政预算法定产生与发展。预算法定完善了财政立宪体制,促成了合法性与合理性并重的审查制度,推动了权力制约机制的建设。第四章以历史考察为主,以英国、美国与法国三国为例,阐述了西方近代财产权与宪政生成的历史进程。英国早在中世纪中后期就确立了绝对财产权的理念,财产权受到普通法传统的庇护,财产权的保障进而促进了社会自治的发展与议会传统改进,宪政的萌芽得以在多元权力的条件下萌生与成长。日益壮大的自治力量为捍卫财产权与英王王权发生了一次次的博弈,并最终以王权的妥协与宪政国家的建立而告终。北美殖民地财产权制度承袭了英国的普通法传统,在这片肥沃的土地上财产权带给产权者们丰厚的财富回报,使他们得以在专制权力薄弱的殖民地广泛普及自由宪政理念,并最终建立起独立的各级地方自治机构。当千里之外的英王不断加强对北美殖民地的控制,并以日益增加的赋税盘剥当地居民的财产时,殖民地人民给予了坚决的反击,宪政运动在这时如火如荼的开展起来。宪政运动最终导致北美殖民地的独立以及美国宪政体制的确立,大英帝国由而彻底失去了对这片土地的控制权。法国则因财产权的缺失、议会的衰变而成就了专制王权,专制王权形成后又进一步剥夺了法国人民的其他权利,遏止了宪政萌芽的成长。之后,法国革命更在缺乏宪政要素的极端条件下爆发,过激的革命又导致新一轮的专制…直到历尽坎坷后,法国才重新确立了财产权制度续而建立了宪政体制。第五章则回归中国问题,对中国财产权视角下的宪政问题进行阐析。旧中国的积贫积弱,仁人志士为救亡图存而发起波澜的宪政运动,但因财产权根基的缺失,致使宪政运动几经失败。这暗示了在旧中国的历史条件下,难以自发形成较完备的财产权制度,更难自然生成宪政机制。到新中国建立后,前30年间,我国确立了初步的财产权制度,国家经济得以迅速恢复,宪政要素开始萌生；但终因未及时稳定与巩固的财产权地位,加之过于频繁的政治运动与私域公域化,导致宪政建设一度停滞甚至回归至零。在后30年里,随着经济体制改革的逐步深入与政治体制的不断完善,财产权制度得以恢复与进一步完善,市场经济体制得以建立健全,宪政建设也开始了复苏与发展。然而,我国财产权保障、经济发展与宪政建设仍存在诸多不相协调的现象,财产权体制、分配与保护领域的种种问题,不同程度上制约与束缚了我国宪政建设的进程。为此,我们要面对现存问题,结合我国的实际情况并借鉴西方国家宪政生成的成功经验,以巩固和完善财产权保障制度为基点,积极探索我国财产权保障与宪政建设的发展道路。本章认为,一方面要继续发展市场经济、完善财产权制度的立法、不断改良财产权的分配制度、强化私有财产权与公有财产权的保护,以巩固宪政建设的基础,自下而上的推动宪政建设。另一方面要健全以人大为基础的民主政治体制,继续限制与约束政府权力,加快法治政府建设,克制公域权力向私域的蔓延,自上而下的推进宪政建设。更多还原

【Abstract】 This dissertation presents a study of the rise of constitutionalism under property rights. The partⅠis a review of the research questions, which is followed by four chapers’discussion of the rise of constitutionalism in various aspects from the property rights perspective. Chapter Five focuses on specific probloms in China.Chapter One starts with a systemic study of the concpet of property rights, which leads to an explicit definiton. Through comparative analysis of the content of property rights between China and western countries, the exsiting differneces between Civil Law and Constitution are studied and an explicit definiton is made. Constitutionalism is a negative political mechanism, which regulate and limit authority of Government Democracy on the basis of democracy in the process of pursuing liberties and rights. As a sustainable approach, it limits and regulates power. The legal rules secure the aim of Human Rights and Independence, and liberties of citizenry. Constitutionalism regulates all sorts of social relations, such as policital relations, economic relations, administrial relations, etc. Nonetheless, there is a supreme rule underlying all such relations, the interests among individuals, which imbody the right of property. Property right is not only an inherent right, but also the fundmental interests among social numbers. The very existance of property rights is to fulfill human’s needs of survival and freedom. In order to meet the needs of protecting property rights and the growing interests in various fields, civil orgnizations based on economic interests were formed spontaneously. During the process of continuous gaming with the authority of state, the parliamentarism which was recongnised by constitution or representative system under political consultative mechanism was fully promoted. At the same time the economic and social struture of humen society were experiencing a gaint leap towards an advanced state and even more great civilization.Chapter Two focuses on the value which was contributed by property right in the formation of constitutionalism from static angle, which includes the following aspects. Firstly, being the initial power of productivity and production relations, property right accelerates the development of social commodity economy and market economy. It contributes not only as the source of wealth, but also an economic fundation during the establishment of constitutionalism. Secondly, property right recongnizes people as independent and liberated individules in the society. everybody is a unique entity which differs from the nature and one another. Moreover, it is the substance which people live on takes the duty of securing the system of human rights. It is safe to say that human rights hardly exist without the protection of property. Therefore, human right securing system based on property right is a valuable goal to the constitutionalism. Thirdly, the defensive nature of property rights protects itself from governmental invasion by building up a soiled barrier of indenpendant private secoters. Such development not only accelerates the improvement of private social self-governing, but also forms a dualistic country structure which involes the opposition of citizenry society and political domain. The conflicting result between the private right and public power conforms the leading position of right agaist power, which reconstructs the relation between people and country. The relation that public power limited by private right is well recognized as the essential value of modern democracy. Fourthly, property rights promote the development of democracy and the rule of law. It is not only the driven power of modern democracy, but also the private force which the rule of law would build upon. Therefore, it is an indispensible value in the raise of constitutionalism.Chapter Three is on property rights’influence on the rise of constitutionalism from a static perspective. This process is construed through financial constitutionalism, which is the compromise from state rights to civil rights through taxation restrction. Financial constitutionalism is also called financial parliamentarinism, which states the principles of property relations between country and citizens. It helps people become masters of the country through the adjustment of the relationship between the country and citizen’s private property. With financial constitutionalism,.the representative system of democracy and legality restricts government’s rights and protect people’s propety from infringement. Thus, the process of the rise of financial constitutionalism is the same with that of constitutionalism. The working mechanism of property rights to the rise of constitutionalism includes the following points. Firstly, it promotes the construction of modern public financial system through the control of government’s expenditure of financial revenue and specification of power working system of the rise of constitutionalism. Secondly, it promotes the rise of modern representive system of democracy, which defines the structure of constitutionalism and establishes the constitution of peoperty protection and financial control. Thirdly, it promotes the legalism of tax revenue, which, in turn, builds property and civil rights protection as the aim of constitutionalism. Fourthly, it promotes the rise and development of financial budget law, which improves financial constitutionalism, forms both legitimacy-oriented and rationality-oriented exnamination system, and thus, establishes effective restrictions of state power.Charpter Four focuses on historical review. In this chapter, The UK, US and France will be taken as examples towards the fromation of mordern weastern property rights and constitutionalism. It can be observed that early as the late of medieval ages, the theory of absolute property rights had already been established and secured by commen law in the UK. Furthermore, under multiple powers, constitutionalism came into being and grew, and such development helped the promotion of social autonomy and improvments in the parliament. On the ground of property rights, autonomy power grew stranger and stranger, which battled sovereign power time after time, and finaly the fund of a constitutional country marked its significant victory over the England sovereign. Such common legal traditions were inherited by the colonies’property rules in North Amercian. The porperty rights guaranteed great profits for its owners, and by this way, indenpendant self-governing establishment was developed and the idea of constitutionalism was widely spread all over the colonies. When the English Sovereign seized his greater control over the colonies by increasing taxes, he had to face resistance from all over the colonies. With the idea of constitutionalism, the colonies were finally won the war of independence and formed the constitutional system of the US. On the otiher hand, France experienced another different approach. With the lost of property rights and the decline of parliamentary power, the soverign power became more and more despotic. With other citizenry rights were also violated, the development of constitutionalism was restrained. Then, with the lack of constitutionalism character, the french revolution was taken place. However, the radical revolution only led to an even worse despotic situation. Only after years of struggle, property rights were restored and constituional mechanism was found.The focus of chapter Five is on the situations of China. During the late of feudal ages, constitutionalism was introduced by Chinese elite in order to save China from poverty and underdevelopment. But due to lack of property rights, several movements of constitutionalism were failed. After the found of PRC, property rights were primiarily constracted and economy was recovered quickly in the first three decades. Howover, before it had the chance to stabilise and enhance such improvement, radical polical movements and the socialization of private property resulted in a backward of consitutionalism. In recent three decades, with the economic reform and the formation of a improving polical system, the property right was restored and further promoted along with the market economy mechannism. The construction of consitutuionalism is also experiencing a major recovery. However, due to the uneven development of property rights, economy growth and consitutionalism construction, problems in the field of property right, distribution and protection are somehow major obstruction towards the found of China constitutionalism. Therefore, current domestic status must be taken into consideration. Combined with the advanced experience of western constitutionalism, the China constitutionalism should be explored with great effort, which could only be achieved by developing a sound mechanism to secure property rights. In this chapter, it is argued that on one hand, in order to complete legislation of property rights, distribution mechansim should be improved under the market economy system. The protection of private right to property should be strengthened along with the public right to property. This is an appoach which could deem to be from top to bottom. One the other hand, in order to restrict state’s power, it is essential to accomplish the democratic political restructuring on the base of people’s congress. Building up a government on the ground of rule of law, ensure the government enforces its duty on securing the fundmental citizenry rights under the scope of constitution and law, and finally to provide institutional support for both private and public property right. It is a top-to-bottom approach in respect of finalising property right and constructuring consitututionalism.更多还原