民间组织的法治功能研究

【作者】 吕震乾；

【导师】 卓泽渊；

【作者基本信息】 中共中央党校 ， 法学理论， 2010， 博士

【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。更多还原

【Abstract】 the force leading to the rule of law comes not only from the state, but more from the society, and the force the society holds on promoting the rule of law is far more durable. Civil organizations, the inevitable outcome of social development and an organizer of social forces, holds a positive influence upon the rule of law, so their contribution to the rule of law is indispensable. With the separation of the society and the state, society, as a force compared to the state, has increasingly secured its own status and independent development. The society, however, needs to have its own autonomous mechanism and organizations in order to integrate the public opinion as well as to realize its own harmoniousness and orderly development, which in turn lays a deep social foundation for the development of the democratic politics and the law-ruling practice; otherwise, it can only be a mess. The main contents of the legal search, of the legal system search in particular, are legal subjects and their behaviors. Social forces, with its development and strengthening, will inevitably give birth to a large number of civil organizations, and numerous behaviors which arise between civil organizations and the outside world needs to be regulated by legal norms concerned. Civil organizations, for their mainstay status and activity form, safeguard themselves an important issue in the legal research, which is expected as the main focus of the study, for the study up to now is mainly conducted from this level. This study will pay much more attention to the organizational carriers that civil organizations provides effectively for social development, and the important roles that civil organizations play in integrating the public opinion, in protecting civil rights, in realizing the supervision and restriction of the public power and in facilitating the interaction between the state and the society. A study of civil organizations has its significance not only in the field of microscopic level, but also in the constitutional construction, for civil organizations have been important contents in this field. To study civil organizations can also form important contents in deepening the law-ruling theory and in expanding the civil society theory. Therefore, civil organizations, still in their early developing stage and without a stable social force, need to be concerned academically in advance, because if there is no forward-looking development in theory, there will be no clearly-oriented development in reality. This thesis, cutting in the relationship between civil organizations and the law-ruling construction, is expected to upgrade civil organizations from a specific social role in reality to an important part in constructing an ideal law-ruling outlook in the normative research, which in turn makes civil organizations access to a level of abstraction. This thesis will not only inquire in a rational and logic way into the positive influence that civil organizations have on the rule of law from the perspective of civil organizations and citizen’s culture, civil organizations and the restriction of power, civil organizations and human rights and finally civil organizations and citizen’s participation. Meanwhile, this thesis will also inquired into the negative influence that civil organizations exert upon the rule of law from the following aspects: the possibility for civil organizations to alienate themselves, the independence civil organizations lack compared with governments, the challenges coming with the internationalization of civil organizations, the special developing mode of civil organizations, the ability that civil organizations integrate themselves and the honesty and credibility foundation that civil organizations are based on. This thesis tries to achieve a research balance through elucidating the relationship between civil organizations and the rule of law from various perspective and two aspects, the positive aspect and the negative aspect in particular.This thesis, based on the various kinds of drawbacks existing in china’s law-ruling construction, holds the current unsatisfying states and the difficulties which china’s law-ruling construction meets reflecting normally in various behaviors characterized by departure from the law-ruling principle, is in fact rooted in the imperfection of the law-ruling theory. For the insufficient study of the law-ruing theory in the current China, and its inability to meet the requirements of the development of the rule of law, the law-ruling theory nowadays needs to be reflected, perfected and promoted. The primary intention of the thesis is that the law-ruling theory, which guides the legal practice at present, should effectively implement the law-ruling program into the concrete behaviors of the legal subjects, and to transfer to some degree the law-ruling theory from the general discussion to a feasible practical route. China’s study of civil organizations, also known as non-government organizations, mainly draws its lessons from its western counterparts, as a result, the theoretical basis of civil organizations, namely the theory of civil society, has formed its unique developing routes and thinking methods. Consequently, a comparison of china’s theory in this field with its western counterparts, will not only secure a good direction for China’s future efforts to carry out the rule of law, but also provide a unique angle in reflecting the real feasibility of civil organizations in China’s context.The main innovation of the thesis can be summed up as follows: with the empirical study based on China’s situation, the thesis is expected to discuss the actual situation and problems of China’s civil organizations with some cases existed China’s civil organizations, to find civil organizations in the Western sense, and to build a civil society in China. In addition to affirming the positive significance of the empirical study, an abstract research is very necessary to be conducted about the legal functions of china’s civil organizations in theoretical terms, which is not only to provide a reflection and reference for china to construct its own law-ruling model dominated by the government, but also to achieve an academic balance between the theory and practice. This thesis, trying to get rid of the drawbacks existing in the present research and selecting the legal functions of civil organization as its research perspective, will conduct its study from the following four routes: civil organizations and power restriction, civil organizations and citizen’s participation, civil organizations and the protection of human rights and citizen’s culture, with an eye to form a relatively complete theory about the relationship between civil organizations and the rule of law. This thesis holds regardless the outcome that the thesis is going to achieve, only judged from the research framework, namely the relationship between civil organizations and the rule of law, there will be an obvious theoretical innovation in this paper. For law itself is not a narrowly-defined discipline, especially in the present time characterized by increasingly fine division of subjects, so no academic research can be only concerned with its own small field, but rather absorbs and learns from each other’s research results and research methods, in order to achieves an superior academic realm characterized by the interconnection between different disciplines. The study of the relationship between civil organizations and the rule of law is obviously characterized by multidisciplinary connection, for civil organizations should be arranged into the research realm of law, if judged from their subject status as well as the regulating objects in legal relations, be arranged into the research realm of sociology, if judged from civil organization’s status in a society, an important organizational carriers in civil society and an important integrating factor for the whole society, be arranged into the research realm of politics , if judged from civil organizations’important functions in supervising the state. From all the facts mentioned above, it will be more appropriate to define the study of the relationship between civil organizations and the rule of law as an cross-disciplinary research. It naturally follows then that some research methods and results from other disciplines will be absorbed and used for reference in the study of the relationship between the civil organizations and rule of law from the legal perspective. The academic achievements which have achieved up to now, mainly belong to the areas of political science and sociology, and the legal research concerned mainly focus on the level of regulating civil organizations by law. This study, based on the research results that related disciplines have achieved, taking legal research as its main line, will be interspersed with some research methods from other related disciplines such as politics and sociology, with an eye to conduct a far more comprehensive, objective and full research.更多还原