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A Analysis on Legislation Value in Chinese Advancement of the Rlue of Law

Author: LiuRongLi
Tutor: LiZan
School: Sichuan University
Course: Legal Theory
Keywords: Public powers Private rights Legislation value orientation The rule of law
CLC: D920.0
Type: Master's thesis
Year: 2007
Downloads: 207
Quote: 1
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Abstract


The purpose and the core value orientation of the rule of law is that the law restricts public powers to protect private rights .the legislation is a important factor of the rule of law construction, because rules and regulations is a fundamental basis of restricting public powers and protecting private rights, therefore the legislation decides the development direction of the rule of law from the source. Whether or not our legislation has the value orientation consistent with the rule of law becomes an important criterion which judging the quality of legislation and the actual effect of our country’s rule of law construction. Looks over whole development and realistic condition of our country’s legislation, although in some aspects our legislation has made an encouraging progress , but on the whole there are still some problems which should not be neglected. If the legislation persists in abiding the spirit of the rule of law, when making institutional arrangement tentatively to private rights and public powers, it will be advantageous to China’s rule of law construction.This thesis divides two parts that are the introduction and the main text. Among them the main text has been explained from four respects.The first part has defined the basic concept of the private rights and the public powers. then from the western thinker and jurist’s explanation of the rule of law, as well as in the practice of the law-ruled country ,we find out that: the purpose of the rule of law is that the law restricts public powers to protect private rights , public powers originates from private rights and serves private rights. The legislation disposes private rights and public powers with the arrangement system, therefore the value orientation of legislation should be in accordance with the spirit of the rule of law, safeguarding the private rights through restricting public powers.The second part has analyzed the influence of the social power structure change on the legislation, and compared the characteristics of Chinese society’s public powers - private rights relationship before and after reform, pointing out that the shift of public powers to private rights is the contemporary Chinese society’s overall characteristic, as well as the macroscopic background of Chinese legislation value orientation transforming.The Third part is a demonstrative analysis of the formulated legal document from 1978 to 2007.Through the analysis we find out: civil and commercial laws which embodying the spirit of protecting private rights increase gradually, some laws which regulating public powers also appears one after another . From the text content of《Constitution》and《Public Security Management And Punishment Law》, we also can find the shift tendency of legislation value orientation which transforms from public powers to private rights, it starts to turn towards safeguarding the private rights through restricting public powers. However, there are quantity multitudinous administrative rules and regulations in the legislation system, and in the process of drafting to announcing, these rules and regulations had mainly be made by the government and the administrative department. Depends on the corresponding authorization, the administrative legislation has carried on the massive expansion of public powers. As a result, the state power has not been restricted, on the contrary, because the department legislation and the power competition, they are expanding latently. It precisely violates with the spirit of the rule of law. On the one hand ,the expansion of public powers threats the private rights; On the other hand leads to the expansion of government function and organization which does not favor our country’s political reform and society’s harmonious development.The fourth part puts forward several proposals which about how to protect private rights and restrict public powers. The author points out ,on the one hand we should continue to enlarge the private rights protection legislation, expanding the legislation about civil laws, increasing and refining stipulations about private rights protection; On the other hand we must limit the administrative legislation and take measures to enhance participation ,strengthen legislation democracy and balance rights and responsibility.

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CLC: > Political, legal > Legal > Chinese law > Theory
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