【作者】 丰霏；

【导师】 张文显；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【摘要】 激励功能是法律制度的重要功能之一。为解决法律制度激励功能研究中的理论分散化问题,本文尝试综合运用现有的多学科激励理论,以跨学科交叉研究的方法,构建了法律制度激励功能理论的基本框架和主要内容。从对“激励”概念的理解出发,本文在激励理论的脉络梳理中提炼出了法律制度激励功能理论所要解决的五个问题,并相应回答了这五个问题,明确了法律制度的激励对象和激励作用点,分析了法律制度的激励因素与激励方式,阐释了法律激励的理想形态,并论述了法律激励的制度设计。本文不仅提出了法律激励的人性基础、激励因素的分形结构、制度设计的人性相容等新颖观点,同时还指明了法律制度激励功能的理想图景,阐述了能动激励、互动激励、自我激励为一体的法律激励理想形态,并将其融入于法律制度激励模式的选择、设计与应用之中,彰显出了法律制度激励功能“以人为本”的理论旨趣。更多还原

【Abstract】 The problem of legal function is a fundamental question and the eternal theme in the field of legal research, all the research of jurisprudence either in ancient or in modern times are concerning this issue, but few people proposes the issue of the motivation function of the legal system clearly. In fact, if we do not have the wishful thinking that maintaining the social order can only rely on the power or the harsh punishment, we will accept that the law in the legal society can only induce people to choose the action of which the community expects, but not force. Therefore, the issue of the motivation function of the legal system is worth studying and has the same pace with the times.The study approach of this issue includes the common-sense approach, the Management approach and the Economic approach. Besides the common-sense approach is too simple in theory, the remaining two have the strong vitality in theory, and they are used in specific study. The motivation theory in organizational behavior and management psychology are used in the field of law, so we get the theory of code of conduct , we expand the theory of motivation in information Economics, and we get the theory of liability rules . These two views are the main theory of motivation function of the legal system in China. But the perspective of this two views are relatively dispersive, the analysis tools that they are used are too unitary, so they do not form a comprehensive explain to the theory or reflect the overall morphology of the motivation function of legal system, or they do not solve the problem of motivation function independently. Thus, the motivation phenomenon is so complex that we can not rely on the motivation theory resources of a single subject when we consider the problem of motivation function, besides we must insist on a composite view.Studying the motivation function with a composite view, first, we must comprehend the word motivation with a composite view. Beginning with the semantic analysis of motivation , we compare the meanings of the word in ancient and in modern times. Combining the understanding of motivation in Management and in Economics, we concluded that, motivation is inspire and encourage , on the one hand, it can be expressed as a personal state, on the other hand, it can be expressed as a driving process. It is the power about individual action, and it is also the direction or decision-making about individual action. Only the action under the control of centralization or oneself can be called being motivated . Based on the understanding of the concept of motivation , we according to the standard of the degree of autonomy and initiative of action, the form of motivation is divided into active motivation and passive motivation . On this basis, we distinguish the concept of multiple motivation and single motivation , not directional motivation and directional motivation . Active motivation is the other party motivation, which is based on the diversification of power of individual and the dispersion of behavior vector, preserves a large space for the autonomy and activity of individual. Passive motivation is another the other party motivation, which is based on the unity of power of individual and the concentration of behavior vector, regards the individual behavior as a passive reflect to the external conditions. The distinction between active motivation and passive motivation constitutes a dark line of the study on the motivation function.Studying the motivation function with a composite view,second, we must list the development of the theory of motivation function systematically with a composite view, which is beginning with the carrot and stick strategy in Taylor’s system . Carrot is the material interests and motivation, big stick is a series of rules and regulations, standardized rules and strict reward and punishment system. It can be said that because of the further reflection of carrot and stick ,the complicated theory of motivation can be created. The theory of motivation in Management begins with the diverse research of matching the accessories and types of carrots in Taylor’s system . It gradually extends to the study of relations between these types and between motivation effects. The theory of contents focuses on the provision of motivation factors; however the theory of processes begins to focus on the choice of motivation manners. The theory of motivation in Economics pays attention to the transformation of stick in Taylor’s system ; also it concentrates its attention on the study of motivation manners, which is different to the former. The classification of carrot and stick or the classification of motivation factors and motivation manners constitutes a clear line of the study on motivation function.In the process of listing the theory of motivation function systematically with a composite view, we relate to the diversity of assumptions about human nature, and it provides us theory resources to understand the basis of human nature of motivation function. At the same time, in this process, we summarize the basic problems of motivation theory which is common in the two main subjects. First, how to regard the nature and characteristics of the person who are motivated; second, what are the factors that motivate the individual action; third, what are the manners to motivate the individual action; fourth, how to design a set of institutional arrangements to motivate the actions of people. These issues will be translated into legal theories, we will get the theoretical issues. First, how to regard the object, the nature and characteristics of motivation function; second, which factors (contents) are benefit to motivation function in the legal system; third, what are the manners to motivate the individual action; fourth, what is the ideal form of the motivation function; fifth, how to design a set of institutional arrangements of motivation? Answers to these five questions constitute the basic framework and main content of the theory of motivation function.According to the first question, we discuss the object which is motivated in the legal system. In line with Lewin’s field of power theory, we believe that the object which is motivated in the legal system is the legal actors which are based on the potential background of the legal relationship, including individuals (natural persons), the group and organizations (legal persons), countries (state organs).The complexity, diversity and hierarchy of the object make the motivation of legal system different from other types of motivation. The object and the action point of motivation are separated, that is, the legal actors are the object which is motivated, and the individuals are the action point. The distinction between them constitutes the internal analytical framework and elements when we study the actual situation of motivation function. Considering the convenience and the complexity in theory, we will define the basis of human nature as natural person . It can connect the assumptions about human nature of motivation theory in Management and in Economics, so it becomes the foundation of human nature in the motivation theory.According to the second question, we discuss the factors of motivation of the legal system. The factors of motivation are the carrot in Taylor’s system , they are the factors of motivation of the theory of contents which can meet the demands of human. Therefore, we explore the theoretical resources of the theory of contents in Management, refer to Maslow’s hierarchy of needs theory , Alderfer’s survival-relations-growth needs theory, McClelland’s power-vested-achievements needs theory and Herzberg’s two-factor theory . On this basis, we discuss the contents of human needs, explain the process in which they are institutionalized as motivation factors, answer the way in which the motivation factors enter the legal system, the specific provisions of motivation factors in the legal system and characteristics and the discipline of motivation factors, present the reducing motivation proposition and the fractal structure creatively. The fractal structure offers the further study of motivation manners convenience in methodology.According to the third question, we discuss the motivation manners of the legal system. The motivation manners is the stick in Taylor’s system , corresponds to the motivation of contents, it is the motivation of techniques. When we use them, we can match the two, or use them independently. Manners and factors of motivation constitute a complete legal system of motivation. We discuss the motivation manners by applying the theory of motivation of process, the theory of behavioral reinforcement and the theory of motivation in Economics. Specifically, they are Adams’s the motivation theory of fair, Vroom’s the motivation theory of expectation, Locke’s the motivation theory of target, Skinner’s the theory of behavioral reinforcement and information Economics, which explain the motivation of fair, expectation, target, reinforcement and information separately. Therefore, the clear line of the study on the factors-manners of motivation is fully demonstrated, and it is also a preparation for the further study on the design of the system.According to the fourth question, we discuss the ideal form of motivation of the legal system. The discussion of the first three questions is an actual description to the motivation function, but the discussion of the ideal form is to discuss the value target of motivation function and what the function should be. The value target includes three aspects: the active motivation, the interactive motivation and the self-motivation. The interactive motivation is a double-sided motivation and mutual motivation between the subject and the object; self-motivation is a motivation that the subject and the object are the same. The ultimate expression of the ideal form of motivation is a motivation function that the actor motivates oneself. The ideal form is not only the goal of development of the theory of motivation, but also the objective requirements and the destination of the theory of motivation. The realization of the ideal form depends on the effective practice of the active motivation and the interactive motivation. These three ideal forms support each other, and form an ideal picture of the motivation function of the legal system. This picture provides us a spiritual impetus, a directional guidance, a theoretical guidance and an evaluation criterion to design the system of motivation function. Therefore, the dark line of the study on the active-motivation passive-motivation is fully demonstrated, and it is also a preparation for the follow-up study on the design of the system of motivation.According to the fifth question, we discuss the design of the system of motivation. Starting with the actual situation of motivation function, combining with the the principle of field force which is transformed, in the formula of B = f (P, R), we believe that we should consider four factors at least in the design of the system, and we have analyzed them respectively in theory. These four factors are: the goal of motivation, that is the standard which the actor expects the people being motivated to achieve, the personal characteristics of the object of motivation, that is the structure of the motion of the conduct and corresponding needs of superiority or assumptions of human nature, the environment of motivation, that is the field of legal relations which affects the direction of behavior of the object, the model of motivation, that are the corresponding factors and manners of motivation. Among them, the choice of mode is a key part of the design of the system, including three types and six kinds: the mode of rights and obligations, the mode of reward and punishment, the mode of help and resistance. Each mode has its own principles and conditions when it is applied, such as the principle of human compatible, which is an innovation in my paper, and so on. Our theoretical summary of the study of factors and manners of motivation is applied in the design process and design methods of the system, the consideration of active motivation and passive motivation is also reflected in the choice of value in the design of the system, finally, the dark line and the clear line of the study combine together in the practice of the system. At the same time, during the test of the design, the foundation of natural persons of human nature of motivation function is prominent.It can be said that answers to the five questions constitute the basic framework and the main content of motivation function, which embody the combination of the theory of ontology, value and practice. However, the theory is gray, only the tree of life is evergreen, if we expect the theory of motivation function to gain and maintain the vitality and forward-looking, we must regard the theory of people-oriented as the foundation and power of the construction and development of theory. The legal motivation of people-oriented is a system of motivation aiming for man, it also can understand the condition of people, respect his choice, trust his ability, meet his needs, and finally help the people realize the ideal of the free and comprehensive development.更多还原