【作者】 桑本谦；

【导师】 林喆；

【作者基本信息】 山东大学 ， 法学理论， 2005， 博士

【摘要】 本文致力于研究私人之间的监控与惩罚,尤其关注私人监控和私人惩罚的社会控制功能。这一论题涉及法律经济学中的两个论域:“规范与法律的互动”以及“私人执法与公共执法的分工”。全文共有十五章(另加绪论和附论),分上下两篇,上篇(第一章到第十二章)侧重于理论研究,下篇(第十三章到第十五章)是实证研究。作者在绪论部分主要介绍其问题意识、分析工具以及写作思路,而在附论部分,作者利用前文的理论成果并通过学术批评的方式提出一个关于中国法治建设和法律实施的假说。 在第一章到第六章,作者主要讨论私人之间的监控和惩罚在何种程度上可以建立并维持一种制度,以及哪些制度可以独立于公共权力。借助前人的理论成果,作者企图论证,即便在没有任何公共权力的无政府状态,仅仅依靠私人之间的监控和惩罚也能促成一些低交易成本的社会合作,并能维持一些初级形态的社会制度。但因受阻于高昂的交易成本,私人之间的监控和惩罚无力促成一些高难度的社会合作,也无力维持高层次的、复杂的社会制度,公共惩罚由此应运而生(第一、二、三、四章)。但国家并非形成于众人之间的约定,而是起源于一个“私营暴力组织”(第六章)。作者试图把私人惩罚和公共惩罚纳入到一个逻辑上的时间顺序之中,通过分析它们各自的逻辑起源以及由此及彼的逻辑演进,可以清楚地审视私人惩罚与公共惩罚的结构和功能以及二者之间相生相克的关系。 在这一部分,作者利用霍布斯、奥尔森和艾克塞罗德三位理论家的思想成果讨论“集体行动的困境”这个古老难题,进而提出一种区别于哈耶克的“社会秩序二元论”,即把社会秩序区分为“自控型秩序”和“受控型秩序”。二者的区别是,“自控型秩序”可以发端于一小撮个体之间缔结的初始契约,然后以这个初始契约为起点自然扩展为被众人遵守的普遍规则,因此,“自控型秩序”可以独立于公共权力而自发形成;而“受控型秩序”却只能依靠公共权力来克服必然存在于众人约定中的“搭便车”和高昂交易费用(第五章)。 在第七章到第十二章,作者试图阐明,私人惩罚与公共惩罚既相互排斥又相互补充,二者的互动可以作为一个分析法律制度的研究范式。国家为维持法律实施的垄断,通常会对私人惩罚手段(尤其是私人暴力)进行限制,但为节省公共更多还原

【Abstract】 This dissertation focuses on the social-controlled function of the supervision and punishment among individuals. The thesis refers to two theoretical areas in law and economics, that is to say "the interaction between law and social norms" and "the division between private enforcement and public enforcement". There are fifteen chapters in this dissertation. The pure theoretical analysis is presented particularly from chapter 1 to chapter 6, system analysis is emphasized from chapter 7 to chapter 12, and positive studies are displayed from chapter 13 to chapter 15. At the introduction, the author present his composing intention, reasoning approach and analyzing tool about the topic. At the end of this dissertation, a hypothesis concerning legality building and legal implementation in china is proposed on the basis of the conclusion of the preamble.The main discussion from chapter 1 to chapter 6 is that to what extent the institution of the private supervision and punishment can be established and sustained and what kinds of institution can be isolated from public power. Recurring to the theoretical fruits of the predecessors, the author attempts to demonstrate that, even under the anarchy without any public power, some social cooperation with low exchange costs can be pushed through only by the supervision and punishment among individuals and some primary social orders can be maintained too. However, because of the expensive exchange costs, the supervision and punishment among individuals can neither bring about some complicated social co-operations, nor establish any advanced and complex social systems. As a result, the public punishment has emerged as it required. The private punishment and the public punishment are tried by this dissertation to bring into one logical temporal order. By analyzing the respective logical origin of the both sides and the logical evolution from the former to the latter, we can see the structures and functions of the private punishment and the public punishment and the interaction between them clearly.In this part, the author discusses the old puzzle of "the dilemma of collective action" through the ideological achievements of the three theorists: Thomas Hobbes, Mancur Olson and Robert Axelrod, then puts forward "a theory of dualism of social order", which is different from Hayek’s, that is to divide the social order into "automatic-control order" and "control-bound order". The difference between them is, "automatic-control order" can originate from the original contact which concluded among some clusters of individuals, later take it as a starting point to expand naturally into the general rules obeyed by the public. Therefore, "automatic-control order" can be isolated from the public power and formed spontaneously. However, "control-bound order" only depends on public power to overcome the free-rider and expensive exchange cost certainly existing in public agreements.From chapter 7 to chapter 12, the author has tried to clarify that the interaction of private enforcement and public enforcement both repulsing and complementing each other can be an approach of interpreting legal system. The nation, in order to keep implementing legal monopoly, often restricts or even prohibits the private enforcement means (especially private violence); but to save the expenditure of the public enforcement resources, the nation must also put up with or even take full advantage of the private enforcement on some occasions. The limit of public enforcement resources forces the nation to take the private monitor and punishment as important social controlled resources. The design of legal system should give full play to the comparative superiority of public enforcement and private enforcement, fairly divide public controlled area and private controlled area, and strive to seek minimum of social controlled total cost. It embodies this principle to a certain degree by the Classic Liberalism of western modern politics, passive doctrine of Inactivity of Chinese ancient politics and the division of public and private laws.By this study approach, the author enunciates the new views about some traditional jurisprudence problems, including the social-controlled function of law, the division of civil and public laws, the division of private enforcement and public enforcement, and have also brought some new interpretations to several legal rules, including the property right, the rules of marriage, the rules of transaction, presumption, privacy, strict responsibility, collective responsibility, and so on. In this section, the author will prove that the interaction of the private enforcement and the public enforcement determines the bourn between law and social norms and the coincidence of them, which also influences the appearance and transitional history of many legal rules profoundly.Involved some legislative cases and judicature cases, the positive studies of this part (from chapter 13 to chapter 15) are inspections and applications for the former theoretical analysis of preceding paragraphs. In order to reveal the economic meaning of these social norms and the social-controlled function of the supervision and punishment among individuals on sustaining these social norms, the mutual cooperation social norms in country areas of Shandong province is analyzed in chapter 13. Furthermore, there is a racketeering case that looks like an adultery case in chapter 14. By analyzing this case, in which the author has tried to indicate that why the law can’t place itself above all kinds of unofficial rules just because of law itself. In the trial of strength of laws, customs and "latent-rules", the key to determine "win" or "lose" is that which kind of rules own the stronger power to sustain itself. By analyzing the two legislative cases, which stick to short messages of mobile phone, the question of enforceability of law, especially how to make full use of unofficial restriction mechanics to implement law, is discussed in chapter 15.Such conclusions as follows are diffused in many chapters and centralized in the chapter 7. The implement of law must depend on some kind of enforcement mechanics but enforcement isn’t non-cost. The maintenance of an effective enforcement mechanics needs the input of all kinds of resources, such as human power, financial power and so on. Private enforcement needs private investment, and public enforcement needs national investment. The latter one is an important expensefor the government fiscal budget, As we can see, a lot of public enforcement resources of nation will be consumed when any law is issued, which means legislation must be restricted by fiscal budget. The insufficient in supply of resources would lead to that parts of the laws are failed to be obeyed, or some people don’t observe laws, because of which the honor of law and the reputation of public enforcement will be damaged. Depend on these conclusion, some explorative suggestions on legislation are attempted to propose as follows.(a). As a result, before a law has been formulated, the legislators should give a general budget about the number of public resources, and the sum the nation can pay for that, which can prevent the great discount of actual effect of law, or even the situation the law perform practically no function, caused by serious overdraw of public enforcement resources. Actually, however justice they are, it is improper for the nation to formulate laws that are substantially failed to enforce. Therefore, the nation need not punish the behaviors she is unable to punish; even the behaviors are obviously harmed to the society and people.(b). The anticipation of benefit to the society is not a sufficient reason for formulating the law, the legislator also must consider that how much public enforcement resources will be consumed and how much benefit can be produced when the saved resources are put into other fields (being used to support another law). Therefore, reasonable nation must maximize the efficiency of public resources: put limited public enforcement resources into the fields that can receive the largest incomes.(c). Although the nation failed to control private enforcement resource directly, by the means of the addition, reduction or withdrawal of input of public enforcement resources at a particular social-controlled field, the nation is able to control the specific distribution of private enforcement resources indirectly. The legislator must think of the respective comparative advantage of private and public enforcement, which can determine whether or what extent public resources will be put in a particular social-controlled field. If private enforcement can consume lower cost but produce more effects, the law should make more use of private enforcement, even to leave a legal blank to lay it to private-controlled field entirely. But what must be pointed out is that although national fiscal expenditure should be saved, it is improper to let individuals bear too much social-controlled expenditure, because the excessive shrink of public control field will also lead to the reduction of the whole social welfare. In a word, when laws are formulated, the legislators should try their best, taking the social benefit as a criterion, to seek for the minimization of the total cost (the sum of public cost and private cost) of social control.At the end of the theory in this dissertation, a hypothesis of legality building and legal implementation in china is proposed: the most important reason for Chinese legality building not being very successful and modern legal system not acclimatizing in Chinese society is not because of the native resources being paid no enough attention to, but because of insufficient supply in social resources (mutual trust of social members which is sustained by supervision and punishment among individuals), after all, is because of the present Chinese society facing the serious crisis of trust.The author thinks the hypothesis about social resources can partly replace the hypothesis of native resources on the interpretation and operability.更多还原