公法人情化论纲
发布时间:2018-12-10 16:48
【摘要】:对法律的人情考虑并不必然意味着对法律之治的违背,以理性方式看待人情,人情则是现代法律人本关怀的一种体现。人情作为一种人本关怀,至于公法更是必要。公法以规制国家权力为核心,,涉及国家与公民之间关系的调整与平衡,可以说,公法的良善与否,直接决定这个人的权利与自由能否得到最大限度的保障。而只有尊重人的尊严、保障人的权利的公法制度,才是真正意义上的良法。一直强调“控权”的公法在严格形式理性之下,其施行和执行的过程却忽略了这样一个良善的标准,对于公法而言,其所拟定的规则是针对社会上一般人、一般事的,不考虑个别,也不注重例外。虽然从法律普遍性的角度而言,注重一般性是其内在要求,但是有时则导致法律的运作未免过于不近人情。因为就社会生活来说,每个人的能力、动机不同,每个人的处境也不一致,用一刀切的方式来机械地实施法律,显然是对社会多元的无视。所以,公法在施行中需要回到人的问题上,关注个别。我们无意于否定公法的法定主义,而是指出公法的运行需要切实地关注人,因为,我们需要的公法,应当能够坚持法定主义等理性原则,同时考虑个人的特殊状况对其行为的影响,给予人基本的关怀。这样一种公法品格,我们将其表述为“公法人情化”。公法人情化是在冲突火花下发生的,这些冲突的火花主要有公法理性与情感的冲突,公法一般性与个体性的冲突,公法价值与规则的冲突等等,而具体的场合是个人的一般境况。为防止公法人情化出现权力滥用、情感的滥用以及选择性司法(执法)的风险,公法人情化应遵循考虑社会公认价值、注重普通人不可避免的错误和寻求公法施行和执行最佳效果等基本原则,并在实体、程序等内容上遵循一定限度。公法人情化并不仅仅是形而上的知识,而且应该是具有生命的行动。最后试图描绘公法人情化的操作图景。
[Abstract]:The consideration of human feelings of law does not necessarily mean the violation of the rule of law. Human feelings are the embodiment of humanism in modern law. As a kind of humanistic concern, as for public law, it is even more necessary. Public law takes the regulation of state power as the core and involves the adjustment and balance of the relationship between the state and citizens. It can be said that the good or not of public law directly determines whether the rights and freedoms of this person can be guaranteed to the greatest extent. But only the public law system which respects human dignity and protects human rights is the true law. It has always been emphasized that the public law of "control over power" is strictly formal and rational, but its enforcement and enforcement process ignores such a good standard. For public law, the rules it formulates are aimed at the general public, the general affairs, Do not consider the individual, also do not pay attention to the exception. Although it is an inherent requirement to pay attention to generality from the point of view of universality of law, it sometimes leads to the operation of law being too inhuman. As far as social life is concerned, everyone's ability and motivation are different, and everyone's situation is not the same. It is obviously a disregard for social pluralism to apply the law mechanically in a one-size-fits-all way. Therefore, public law in the implementation of the need to return to the issue of people, pay attention to individual. We have no intention of denying the legalism of public law, but rather point out that the operation of public law requires practical attention to people, because the public law we need should be able to adhere to rational principles such as legalism. At the same time, consider the influence of individual's special situation on their behavior and give basic care. Such a character of public law is described as "humanization of public law". Humanization of public law occurs under the spark of conflict. The sparks of these conflicts mainly include the conflict between rationality and emotion of public law, the conflict between generality and individuality of public law, the conflict between value and rule of public law, etc. The specific occasion is the general situation of the individual. In order to prevent the risk of abuse of power, emotional abuse and selective administration of justice (law enforcement) in the humanization of public law, the humanization of public law should be guided by the consideration of socially recognized values, We should pay attention to the unavoidable mistakes of ordinary people and seek the basic principles such as the best effect of public law enforcement and enforcement, and follow certain limits in the content of entity, procedure and so on. Humanization of public law is not only metaphysical knowledge, but also an action with life. Finally, it attempts to depict the operational picture of humanization of public law.
【学位授予单位】:苏州大学
【学位级别】:硕士
【学位授予年份】:2012
【分类号】:D90
本文编号:2370900
[Abstract]:The consideration of human feelings of law does not necessarily mean the violation of the rule of law. Human feelings are the embodiment of humanism in modern law. As a kind of humanistic concern, as for public law, it is even more necessary. Public law takes the regulation of state power as the core and involves the adjustment and balance of the relationship between the state and citizens. It can be said that the good or not of public law directly determines whether the rights and freedoms of this person can be guaranteed to the greatest extent. But only the public law system which respects human dignity and protects human rights is the true law. It has always been emphasized that the public law of "control over power" is strictly formal and rational, but its enforcement and enforcement process ignores such a good standard. For public law, the rules it formulates are aimed at the general public, the general affairs, Do not consider the individual, also do not pay attention to the exception. Although it is an inherent requirement to pay attention to generality from the point of view of universality of law, it sometimes leads to the operation of law being too inhuman. As far as social life is concerned, everyone's ability and motivation are different, and everyone's situation is not the same. It is obviously a disregard for social pluralism to apply the law mechanically in a one-size-fits-all way. Therefore, public law in the implementation of the need to return to the issue of people, pay attention to individual. We have no intention of denying the legalism of public law, but rather point out that the operation of public law requires practical attention to people, because the public law we need should be able to adhere to rational principles such as legalism. At the same time, consider the influence of individual's special situation on their behavior and give basic care. Such a character of public law is described as "humanization of public law". Humanization of public law occurs under the spark of conflict. The sparks of these conflicts mainly include the conflict between rationality and emotion of public law, the conflict between generality and individuality of public law, the conflict between value and rule of public law, etc. The specific occasion is the general situation of the individual. In order to prevent the risk of abuse of power, emotional abuse and selective administration of justice (law enforcement) in the humanization of public law, the humanization of public law should be guided by the consideration of socially recognized values, We should pay attention to the unavoidable mistakes of ordinary people and seek the basic principles such as the best effect of public law enforcement and enforcement, and follow certain limits in the content of entity, procedure and so on. Humanization of public law is not only metaphysical knowledge, but also an action with life. Finally, it attempts to depict the operational picture of humanization of public law.
【学位授予单位】:苏州大学
【学位级别】:硕士
【学位授予年份】:2012
【分类号】:D90
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