【作者】 任薇；

【导师】 梁小尹；

【作者基本信息】 中南大学 ， 国际法学， 2010， 硕士

【摘要】 自欧洲移民把法治理念带进北美开始,经过独立战争的传承发展,宪法至上与三权分立已成为美国自上而下的法律信仰,并体现在对外贸易领域从立法到执法再到守法这一连贯机制的法治成就上。美国对外贸易法的制度与实践直接影响着全球经济及全球贸易制度的内容及其发展,具有重要的法治意义。就立法阶段而言,美国对外贸易立法权的授予具有宪政基础,立法权的行使程序具有明确的法律依据,立法形式科学、内容完备。但由于近年来为了在国际上维护霸权地位和受国内政治与利益集团的制约,美国将贸易法作为政治工具推行单边主义,削弱了外贸立法的法治优势。就执法阶段而言,美国对外贸易执行机构职责明确,权力分工相互制约,执法程序完备且具正当性,有利于美国外贸执法法治的实现。同时基于经济复兴的需要,美国外贸执法中也存在滥用自由裁量、司法审查受局限、执法主体法治素质差异大等漏洞。就守法阶段而言,法律赋予的外贸各方当事人平等诉讼权,以及各种守法促进制度,是外贸守法法治建设的重要成就,同时也存在诸如模糊性规则和霸权性条款,以及有差别的守法主体法定权利义务等违背公平平等原则的现象。相较美国外贸法治建设的成就与不足,我国外贸领域存在诸多问题,可以通过借鉴美国经验,完善对外贸易立法制度,强化对外贸易执法法治建设,培育对外贸易守法机制的社会根基,以努力完善我国的外贸法制与实现我国外贸法治秩序。更多还原

【Abstract】 Since the rule of law principle was brought by European immigrants into North America and inherited and developed through the War of Independence, the Supremacy of the Constitution and the separation of powers have become the superincumbent law belief in America, which reflect in the coherence achievements of the rule of law in the field of foreign trade from legislation to law enforcement and then to the compliance with law. The U.S. foreign trade law system and practice directly affects the content and development of the global economy and trading system. It becomes considerably significant for the rule of law. As far as the legislative stage, the grant of US Foreign Trade Law legislative power has the constitutional foundation. The exercise program of legislative power has a clear legal basis. The legislation form is advanced and the content is complete. However, in order to maintain hegemonic status in the international community, restricted by domestic politics and interest groups in recent years, the United States Trade Laws are used as a political tool to implement unilateralism and the superiority of foreign trade legislation has been undermined. As for the enforcement of the law, the executive bodies of U.S. foreign trade assume very clear responsibilities and the division of power has mutual restraint. The bodies possess complete and proper enforcement procedures. All the advantages above make for the good operation of U.S. Foreign Trade Law. At the same time, because of the need for economic revitalization, there are loopholes in the law enforcement, such as abusements of discretion, absences of judicial review and the big differences between the qualities of the executive bodies. In terms of compliance stage, the law gives parties equal right of action and a variety of promotion system for compliance. These are important success of the rule of law in aspect of abiding law. But it also created problems like certain fuzzy rules, some hegemonic clauses, and the different legal rights and duties of the law-abiding, which violate the principle of fair and equality. Compared to advanced U.S. foreign trade regime, there are many shortages in our foreign trade law. We need to learn from American experience and try to improve the legislative system of foreign trade. We should strengthen the rule of law in foreign trade. It is urgent to cultivate social foundation of foreign trade law-abiding mechanism. We strive to achieve the order of rule of law in foreign trade area.更多还原