【作者】 叶立周；

【导师】 姚建宗；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 博士

【摘要】 当代中国走向法治的社会实践以国家主导的渐进性发展为其显要特征。从为实现中国社会的转型与发展提供服务和保障的角度来看,在一定时期内,这种法治实践模式有其积极意义。但随着中国改革开放实践的推进,全球化的世界整体变迁、市场化的经济运作模式、工业化及其导致的城市化进程、社会主义民主政治的进展等诸多因素的合力作用使得中国社会面貌发生了巨大的变化,社会成员的利益分化和社会分层日益显明,人们的利益取向和价值观念呈现出更加多元和开放的态势。由此,既有的“自上而下”法治模式遇到了前所未有的挑战,主要表现为社会成员的法律认同危机。秩序建构(法)的合法性问题日益凸显。社会形势的发展内在地要求我们转换看待法治的立场,即从受众(社会成员)的立场、从实现国家与公民社会良性互动的角度来对待中国的法治建设。从根本上说,法治的良性运行赖于社会成员对现行法律的接受。社会成员的法律接受过程集中体现为社会个体形成积极(正向)法律态度的社会心理过程。法律态度是人们对于法律(包括静态和动态含义)的认知、情感和行为倾向形成的总体评价。积极(正向)的法律态度的形成与发展同社会情境的优化有着紧密的关联。这需要我们改良法律运行环节、改革法学教育模式、转变普法的理念和路径,为实现国家、社会和公民之间的良性互动和推进我国的法治建设创造合宜的观念和制度条件。更多还原

【Abstract】 The issue involved in the thesis is how citizens can take positive law attitude towards laws and rule of law in contemporary China (it mainly refers to China since the end of 1970s), or in another way, how to justify the social order construction.Why study this issue? The reasons can be found in aspects of theory and practice.Theoretically, the current rule of law theory mostly follows the analytical frame of Aristotelian rule of law formula, developing its own thinking based on law-abided social members and law-is-good-law. Among the thinking, more discussions are made on hardware issues of rule of law from the side of the state or government consciously or unconsciously, but less discussion on software questions of rule of law, such as why people abide by the law, what the psychological process is when people follow laws, what the good observe to when people Should follow good laws, who is the subject responsible for judging good laws, how to achieve the harmony between law and human being (actually, it is the harmony among people with the law as the intermediary), and issues relating to how to make people form identification with laws and rule of law, and respect and trust laws and rule of law.Practically, the reason to study the issue is based on consideration about China’s practical situation. Since the reform and opening, there have been significant changes in the development of the nation and the society, which manifest prominently in two aspects: firstly, globalization has come into our social life; secondly, reform brings structural change into Chinese society. These two aspects intertwine with each other, and create the current situation of China. Among them, there are social benefit differentiations, subject diversification of social benefits, ever-enlarging gap between the rich and the poor, the enlarging gap among different regions, changing values and reinforced self-consciousness resulted from the increasingly convenient information communication. Under this circumstance, it becomes more and more complicated to construct social orders, and social risk increases. The management model of China is the centralization of authority and highly planned control for a long period, and the state carries out its will by reasonable design and from up to down. This model meets more and more challenges in current times. There are many problems without the free and equal participation of social members in the construction of rule of law in this dimension, among which, the prominent one is that there is a sense of alienation but not identification, let alone the legal belief in rule of law conception. The quality of rule of law implementation is unpromising if social members have no identification and respect for laws.The theme of the article is carried out in two parts.The first part is chapter one and two in the main body, which discuss the definition and process of acceptance of law. This part provides readers with an understanding frame.The analysis and definition of acceptance of law are made in this way: firstly, the meaning of acceptance in the sense of life is explained, next is the meaning of acceptance as an academic term, and then followed by the study on acceptance of law in law circle. The concept of acceptance of law is defined from the angle of legal social psychology which is also the key viewing angle in the article: acceptance of law is the process during which social individuals form positive law attitude in the process of law socialization. The characteristics of acceptance of law are subjectivity, complexity and historicity and gradation. Compared with law dissemination, acceptance of law mainly develops discussions with the recipient as the subject. The different aspect of acceptance of law from law consciousness is that acceptance of law concerns more about the formation of individual positive law attitude considering the connection between individual psychology and social influence.There are three elements in the law attitude, which are law cognition, law emotion and behavioral tendency. Law recognition is the inputting and processing of law information. Related to law evaluation, law emotion refers to the complicated psychological process when individual make law evaluations. Behavioral tendency mainly involves the critical state of the outward transformation of law attitude, which is the will and motive. The author intends to solve two problems by explaining the acceptance of law process, one is that, the formation of law attitude is a complicated process, and is a process during which individuals and social influence interact with each other. The forming and changing of personal law attitude are closely related to the social situation he or she is in. This understanding provides precondition and base for the second part. The other is that the formation of law attitude, especially positive attitude is a complicated matter. Law attitude is not simply composed by three integral parts: law cognition, law emotion and behavioral tendency. Psychological study shows that, people’s attitudes can be based on cognition, emotion or behavioral tendency. However, generally speaking, these three bases are closely connected, and most importantly, discrepancy can appear in all of them: individual law cognition, law emotion and behavioral tendency, which may have negative impact on the forming of positive law attitude.Part two is composed of chapter three and four. On the basis of analytical frame and theory constructed in part one and combining China’s concrete situation, this part points out problems which are adverse to acceptance of law existed in the current rule of law practice, and also proposes several pieces of advice to optimize acceptance of law according to the true situation of China.Firstly, it briefly introduces social context situations which are the basic construction conditions of rule of law in contemporary China, that is, the influence of globalization, social transition and risk society. It also introduces the general condition of the theory and practice of rule of law in contemporary China. The key point is to point out and analyze problems in the practice of rule of law in contemporary China, the root causes for these problems, and their negative influence on the construction of China’s rule of law. During this process, the theme is closely centered on, that is, the relationship between social influence and individual psychology. Problems existed in the construction of rule of law in contemporary China are: insufficient participation of citizens, disorder of public administration, absence of judicial authority, the subject absence of law education, misunderstandings in law education, among which, the insufficient participation of citizens is the major problem. This article focuses on difficulties during the process of forming citizenry society, the defects and inadequacy of the representation in the system of People’s Congress. The major problem in contemporary China is how to implement the people are masters better. The root causes for the above problems are: firstly, they are related to the long-term implementation of centralization model; secondly, bureaucracy is a persistent ailment in our national administration; the last reason is about the influence of traditional law culture. Among all these causes, the key is the view of state standard, which means taking national interests and national targets as the most important. I call it as the legal practices of state standard. Thus, it is concluded that, the vital issue during the process of acceptance of law in contemporary China is the absence of recipient, which is the core problem that influence and even determine the formation of individual positive law attitude.How to solve the problem? The solution clue in the article involves two aspects, one is the transformation of legal practices and the reform of rule of law practice.The transformation of legal practices means transforming the legal practices of state standard to negotiable legal practices. Negotiable legal practices do not mean to overlook the state, let along against the state, but to provide support on the way of concept for the benign interaction relationship among the state, society and the individual. The core of negotiable legal practices is that the administration of the state and society should be the process of free and equal game among interest subjects. The state mainly plays the role of a host, which is to provide a place for the free and equal discussion among benefit subjects and enable people to discuss issues that they all concern about and relating to their interest through a reasonable procedure, with equal right to voice their opinion and obligation to listen to others’opinion carefully. Each party should provide arguments for their opinion and the result of negotiation should be authoritative. The negotiable legal practices are the result that, as the overemphasized sense of state and the inadequacy of social members’participation in the current theory and practice of rule of law cause many social risks, it is suggested to change our viewpoint and understand rule of law in another stand, which is to view the construction of rule of law in China from the side of social members. Social members are involved in social administration, and the process of regulation establishment is the process that interest subjects discuss, compromise and reach agreement. The discussion process is favorable to culture qualified citizens. The citizenry education is also an urgent problem in China; one is that no strong sense of participation and the other is too strong sense of private. Through the discussion in negotiable legal practices, it is hoped that the connotation of public awareness could be improved.The reform of rule of law practice includes the following aspects: improving the establishment and training mechanism of NPC deputy and deputy’s representative feature; promoting positively and regulating reasonably the development of citizenry society; establishing benign interaction between the state and citizenry society; creating service-type government by improving their ability of enforcing the law and strengthening citizens’supervision and restriction on the government; achieving the goal of Justice for the people and improving judicial authority. The reform also involves focusing on and reinforcing the teaching process in the law education, developing students’activeness and creativeness sufficiently, establishing law students’belief on the rule of law conception. Besides, the law education conception should be changed by putting the emphasis on culturing qualified citizens, strengthening the enlightenment and knowledge dissemination of law government to the country and farmers, improving law education model in school, improving the quality and level and changing ways and methods of law enforcement and judicial staff’s working ways and methods. The central aim of these practical reform measures is to train qualified citizens, to achieve the participation of citizens in the national and social administration. Only on this basis can citizens have identification with rule of law, respect and trust it, can they establish the belief on rule of law conception, can the improvement be made in China’s rule of law practice and the optimization of acceptance of law be realized.更多还原