【作者】 梁木生；

【导师】 张卫东；

【作者基本信息】 华中科技大学 ， 西方经济学， 2008， 博士

【摘要】 一直以来,人们总是将法治视为一个文化问题,或是一个政治问题。随着市场经济在我国的迅速发展,人们逐步认识到走向法治最终是一个经济问题。而作为一个经济问题,市场经济与法治具有怎样的内在逻辑关系,学界应该给予系统而深入的探讨。从公认的法治的概念入手发现,法治不仅需要国家权力施行法律,还要法律控束国家权力。法治的这一界定告知,走向法治内含政治悖论:国家权力制定、实施法律,国家权力是推动法律运行的外在力量;国家权力受到法律规束,国家权力是法律调控的对象。施行法律与受制于法律的国家权力为同一主体,法治因此存在政治悖论。面对法治中的政治悖论,国家权力不会自我克服,法律亦没有能力克服,只能依靠国家权力与法律以外的力量。文明世界历史发展进程供给的一个经验事实是,法律伴随国家产生时这一力量并不存在——否则法治理应凭借这一力量于国家出现时确立,这一力量是社会文明发展到一定历史阶段后形成的,它表现为人类社会经济渐进发展过程中自然演变而成的一种新的生产方式,人们约定俗成为市场经济。作为一种健全的生产方式,市场经济在运行过程中,基于生产的专业分工与资源的广泛交易,在各经济主体之间形成了相互制约的经济关系,这一制约的关系机制,具有能力将法治建构于市场经济社会:在市场经济运行中,制约的市场机制内在地支撑着资源的公正交易,并自主整合各类经济主体为统一、强大、稳定的经济力量诉求外力作为公正人维护市场经济的公正运行;而在国家作为公正人为市场经济认可后,自我整合起来的市场主体会以自身强大的经济力量改造传统国家为先打国家,并自主委托代理人履行国家作为公正人履行的职责;为了确保国家职能的公正运行,作为委托人的市场主体将会以多样化的手段、方式,控制和约束代理人的国家行为,同时强制其制定法律将整个政治行为、经济行为及其其他社会行为纳入调控范畴,以达成国家与社会的法治化运行。当然,从实践上讲,市场经济在文明世界的形成具有内生与移植两种基本方式,法治的市场建构也相适应地表现出两种基本路径:内生型市场经济国家以控制国家权力的法律制度首先到位,然后通过法律治理范围的逐步扩大为演进路径;移植型市场经济国家以市场经济的逐步发展为推动力量,最终通过政治的民主化转轨达成法治的全面确立为演进路径。我国是移植西方的市场经济开始经济现代化之旅的,法治的演进只能通过市尘玫闹鸩椒⒄棺钪帐迪?那种力图法治在我国一蹴而就的希望是不现实的。与此同时,受到国情的制约,我国市场经济的发展过程面临各种挑战,这些挑战不仅干扰着我国经济的健康、平稳运行还通过经济影响着我国法治进程的正常推进,对此我们同样应该具有你清醒的认识。更多还原

【Abstract】 Usually, rule of law is considered as a cultural or political issue. With the rapid progress of market economy in China, people gradually noticed that it is eventually an economic issue to gain access to the state of rule of law. As an economic issue, it is therefore necessary to study and discuss the internal logical connection between market economy and rule of law systematically and deeply.Though the generally acknowledged concept about rule of law, it follows that not only the state power should enforce the law but also the law should restrict the state power in turn. This concept of rule of law tells us the paradox exists on the way access to the state of rule of law: it is the state power that makes laws and pushes the operation of the law; in the meanwhile, the state power is also restricted and treated as the target to adjust by law. Faced with the problem, it is essential only to depend on the third force except for the state power and law because both of them cannot dissolve it. The empirical fact that the process of the cultural world development provided is that the force discussed above does not emergent with the advent of the law companied with the state——otherwise rule of law should have been established with such force when the state appeared, which is eventually formed at the special stage of the process of social culture, and displayed as a new production mode that evolved naturally in the process of the gradual social economy development. Usually, it is accepted as a common sense named market economy.As an integrated mode of production, based on the social division in special field and widespread trade of resource, the constraint relationship is formed between the economy entities in the operation of the market economy. The mechanics of the restricted relationship is able to construct the state of rule of law in the market society: in the operation of the market economy, the mechanics could support the fairly trade of the resource internally, and consolidate each kind of economy entities to be an unite, strengthened, stabled economy force to sought for external force in order to sustain the fairly operation of the market economy. When the state is ratified as a arbitrator by the market, the economy entities consolidated by themselves would reform the traditional state toward a modern state and commit an agent independently to perform the function as an arbitrator; in order to ensure the fairly perform the function, the economy entities as an agent would control and restrict the national behavior of the agent through a variety of measures and ways, at the meantime, force the government to make law to adjust political behavior, economic behavior and any other social behavior, a country therefore operating under rule of law.In practical, there are indeed two ways to access the market construction of rule of law, according to there is two ways contained emergent internally and transplant externally: in inner-born market economy state, the legal system that control and restrict - the power would arrive in place first, and then gradually broaden the range of rule of law. This is the evolved path of inner-born market economy state; while in the transplanting market economy state, it is through the evolved path that the market economy develops first as a promote force to transform the society into the state of political democracy and eventually set up the rule of law entirely.The evolvement of rule of law in China should be only realized with the gradually developing of market economy. Any idea that achieve rule of law immediately is unrealistic, because China began its modernization trip by transplanting the western market economy. In the meanwhile, there are still a fair amount of challenges in the market economy development process, which not only interrupt the health and stable of the operation of our national economy but also impact the normal development of process of the rule of law. We shall take clear-headed eyes on it.更多还原