【作者】 余海华；

【导师】 常健；

【作者基本信息】 华中师范大学 ， 经济法学， 2008， 硕士

【摘要】 《法国民法典》早在200多年前确立了“过错责任”基本原则,人人都要严格对自己的行为承担责任,政府也当如此。当政府违法时,政府也应该依法承担责任。而在当前土地征收中强化政府责任法治化则愈加迫切和重要。政府在土地征收中依法享有行政职权的同时,必须依法承担相应的法律责任,以约束其行为的随意性。通过政府责任的法治化,力求做到“谁行为、谁负责”,以提高政府行政行为的质量。现代责任理念要求“权责统一,人人皆可被问责”。权力与责任是辩证一致的,责任是授予权力的前提,权力是履行责任的保障。就责任政府的实质来看,其实质上秉承的是“权责统一”的理念。就我国而言,我国的行政模式由“权力行政”向“责任行政”的转轨,实质就是力求摒弃传统的自上而下的、仅仅依靠权力运作、充斥着责任的失衡与缺失的管制行政模式,而试图构建一种以“权责统一”为理念的新型政府行政模式。完整的“权责统一”的理念,内在地包含着权责的对等与一致、权力的监督与制衡和完善的责任追究制三者的有机统一。本文行文从责任到责任政府、从责任政府到政府责任、再从政府责任到土地征收中的政府责任依次展开而来,以“责任”贯通全文,以现实案例进行深层剖析,解析土地征收中政府责任失范的根源,以达到对土地征收中政府责任提出法律构建。具体内容如下:第一部分从责任、责任政府和政府责任三者的概念出发,阐述其含义和相互之间的联系。基于经济法的视角,解析了现代责任的法治解构,并指出囿于时代和制度的约束,传统的法律责任理论不可避免地存在着偏狭和缺失,其局限性已日益突出。由于经济法责任的勃兴、扩大及超越,从而更有利于政府对其行为承担起其经济和社会责任,进而在此基础上提出在责任政府视野下的政府责任,强调“人人可被问责,责任政府亦要将责任落到实处”。第二部分进一步阐述土地征收中的政府责任。首先,论述了现行法律对土地征收中政府责任的相关规定,并作出解析。其次,从社会公共利益的维护与政府责任的角度出发,论证为什么要在现行法律中规定政府责任。第三部分通过浙江龙泉政府征地纠纷案对土地征收中政府责任失范作出考察,解析土地征收中政府责任失范的根源,从观念、机制及立法上对其作出检讨。与此同时,论述了国外发达国家土地征收中政府责任对我国的启示。第四部分基于责任政府的视角,对土地征收中政府责任提出法律上的构建。提出了责任政府权责统一的法理念;从建立土地征收目的合法性审查机制、政府责任相应法律规范的完善、创新土地征收中政府责任管理机制等方面完成对土地征收中政府责任的制度构建;完善政府责任的监督机制、建立经济公益诉讼机制,从程序上保障土地征收中政府责任的实现。更多还原

【Abstract】 "The French Civil Code " has established the basic principle—"the mistake responsibility" more than 200 years ago , Everybody must undertake the responsibility strictly to their own behavior , so must the government. When the government acts illegally, the government should also undertake the responsibility legally. But strengthening the government responsibility governed by law in the current land collection is even more to be urgent and important.When the government enjoys administrative authority legally in the land collection, it must undertake the corresponding legal liability legally and restrains its behavior to be capricious. Through government responsibility governed by law, making every effort to achieve "whose behavior, who to be responsible", to improve the government administrative action’s quality.The modern responsibility idea requests "the consistent of power and responsibility, everybody all may be punished". Authority and responsibility is dialectical and consistent, The responsibility is the premise to be awarded the authority and the authority is the safeguard to fulfill the responsibility.As to responsible government’s essence, what it materially receives is "the consistent idea of power and responsibility".As to our country, its administrative pattern is transforming from "the authority administration" to "the responsibility administration", the essence is to make every effort to abandon the tradition top-down controlled administration pattern that only depends upon the authority operation and floods the unbalance and flaw of responsibility, but attempts to construct one kind that takes "the consistent of power and responsibility" as the idea of new government administration pattern. Complete "consistent idea of power and responsibility" intrinsically contains three organic unifications which are the consistent idea of power and responsibility, the authority surveillance to keep in balance and the consummation responsibility investigation system.This article is written from the responsibility to the responsible government, from the responsible government to the government responsibility and from the government responsibility to the government responsibility in the land collection, it links up the full text by "the responsibility". It carries on in-depth analysis by the realistic case, and analyzes the reason why the government responsibility is not controlled legally, in order to propose the legal construction of the government responsibility in the land collection. The actual content is as follows: The first part embarks from three concepts of the responsibility, the responsible government and the government responsibility, elaborates its meaning and the relation. Based on the angle of view of economic law, analyze the modern responsibility governed by law, and points out constrained by the time and the systems, The traditional legal liability theory exists inevitably with narrowness and flaw, its limitation already comes prominently day by day. As a result of economic law responsibility is growing vigorously, expanding and surmounting, thus is more advantageous for the government to undertake its economy and the community responsibility for its behavior, then propose government responsibility under the responsible government field of vision based on this, Stress that "everybody may be punished, the responsible government must land the responsibility on feet".The second part further elaborates the government responsibility in the land collection. First, it elaborates the current law in the land collection about the government responsibility, and makes the analysis. Next, embarking from the social public interest’s maintenance and government responsibility’s angle, it proves why government responsibility must be stipulated in the current law.The third part makes the inspection of why the government responsibility is not controlled legally through the Zhejiang Longquan Government land-levying dispute in the land collection, analyze the reason why the government responsibility is not controlled legally in the land collection, and make the self-criticism to it from the idea, the mechanism and the legislation. Meanwhile, it elaborates the government responsibility of land collection in the overseas developed countries that gives our country’s enlightenment.Based on responsible government’s angle of view ,the fourth part proposes in the legal construction to the government responsibility in the land collection, and propose the responsible government consistent of power and responsibility law idea; From establishing land collection goal validity examination mechanism, Government responsibility corresponding laws’ improvement, innovate government responsibility management mechanism in land collection and so on, Complete the system construction in the land collection. Improve government responsibility supervising mechanism , establish economical public welfare lawsuit mechanism, to safeguard government responsibility to be realized from the procedure of the land collection.更多还原