【作者】 曾明；

【导师】 颜运秋；

【作者基本信息】 湘潭大学 ， 经济法学， 2008， 硕士

【摘要】 随着世界范围内国家管理的衰落与公共治理的兴起,传统法的定义特别是国家法的定义难以覆盖法的外延,更难以包涵法的内在精神与要素。现代法律无论就其内涵还是外延都在深化和扩展,基于此将法分为硬法和软法两种基本形式并非没有根据,实践呼唤理论的回应,学界对软法规范的研究也日益兴起。经济法学界对软法规范的研究起步比较晚,与经济法作为一个新型的法律部门的地位不相适应。事实上经济法作为一种回应型法,经济法视域中的软法规范不仅大量存在,而且广泛存在于政府、市场、社会中间层等经济法的各个主体层面。经济法视域中的软法规范有其自身的特点与作用,它具有非国家强制性、创制方式的弹性与民主性、非司法中心主义、法律位阶的非层次性等特点使得其与经济法视域中的硬法规范区别开来。同时它与经济法视域中的硬法规范相得益彰,共同规范和调整着经济法律关系,它一方面推动公共治理,克服政府和市场的双重失灵,另一方面有效的弥补硬法的缺陷,实现软硬的互动治理。它在强化法律的正当性与实效的同时也不断推动经济法治目标的实现。但软法规范的缺陷也是极其明显的,一方面软法的泛化不利于法治社会的构建,另一方面软法极易发生异化需要进行相应的完善。为此,我们有必要从以下几个方面来完善经济法视域中的软法规范。第一,防止软法的泛化,使软法朝着法治化方向前行;第二,实现软法规范与硬法规范的有效对接与整合,将软法规范赋予硬法的某些特征使软法朝着硬法方向转化;第三,赋予某些软法规范的刚性使软法朝着可诉化方向迈进,创设独特的诉讼机制;第四,创设软法的监督机制。总之系统的研究经济法视域中的软法规范,以此来发挥经济法视域中软法规范的应有特点,并趋利避害的利用这些特点来推动我国经济法治建设的发展是时代交给我们的历史使命,我们应当认真对待经济法视域中的软法规范。更多还原

【Abstract】 With the coming down of administration of country and the rise of public governance in the worldwide, the definition of traditional law, especially the national law, is difficult to cover the extension of legal norm and to include the inherent elements and the spirit. Modern law is now deepening and spreading its connotation and extension as well, so it also has basis that the law is divided into two basic forms, hard law and soft law. And the scholars are more interested in the soft norm. To study the soft norms were late comparatively in the academic of economic law, which was not suit to the status of economic law as a new law department. In fact, being a respondent law, soft law norms also widely existed in the field of economic law, which existed widely in all main levels such as government, market, middle layer society, etc. The soft law norm with its own character and effect is difference from the hard law norm in the field of economic law, which its characters have non—national mandatory, flexibility and democracy with creation, non—judicial, non—classes in law rank. At the same time, it adjust relationship of the economic law with hard norm together which is the supplement to each other. On one hand, the soft norm promotes public governance and overcomes the government failure and market failure. On the other hand, it is effective to compensate for the shortcomings of hard norm, to achieve the interactive governance of both soft and hard norm and strengthen the legitimacy and effectiveness of law. Furthermore, it will promote economic law’objectives of the ruled by law. But there is very obvious defects existing in the soft norm. Firstly, the generalization of soft law is not conducive to built a society ruled by law, secondly, soft norm prone to be alienating that needs for the corresponding consummation of it. so we need perfect the soft norm of Economic Law from the perspectives as follows: Firstly, we must make the soft law go forward to ruled by law and prevent overextension of the soft law; Secondly, we should endow with certain characters of hard law to soft law and make it transform into the hard law through the effective joint and integration of soft norm and hard one; Thirdly, the rigidity enduing with some soft law norms make soft law progress forward to litigable ways; Fourthly, enhance the system of supervisor in soft law. Above all, we should study soft norm in the field of economic law comprehensively, so that exert its character with essentiality. And it is our historic mission for times that promoting the development of construction of economic law ruled by law that make use of these characters, so we need to treat earnestly the soft norm in economic law.更多还原