论平衡型宪政及其对我国的实践意义.pdf

3 目目 录录 摘 要„„„„„„„„„„„„„„„„„„„„„„„„„„„„„„Ⅰ Abstract„„„„„„„„„„„„„„„„„„„„„„„„„„„„„Ⅱ 引 言„„„„„„„„„„„„„„„„„„„„„„„„„„„„„„1 一、平衡型宪政的理论内涵、理论模型和理论渊源 „„„„„„„„„„„3 （一）平衡型宪政的理论内涵„„„„„„„„„„„„„„„„„„„3 （二）平衡型宪政的理论模型„„„„„„„„„„„„„„„„„„„7 （三）平衡型宪政的理论渊源„„„„„„„„„„„„„„„„„„„8 二、平衡型宪政的结构要素 „„„„„„„„„„„„„„„„„„„„„11 （一）张扬人的主体性是达致平衡型宪政的前提„„„„„„„„„„„11 （二）培育多元均衡力量是达致平衡型宪政的基础„„„„„„„„„„14 （三）依托程序进行妥协是达致平衡型宪政的制度保障„„„„„„„„21 三、平衡型宪政对我国的实践意义 „„„„„„„„„„„„„„„„„„26 （一）必将进一步弘扬人的主体性„„„„„„„„„„„„„„„„„26 （二）有助于培育多元均衡力量以发挥分权与民主的效用„„„„„„„28 （三）有利于更加注重程序性制度建设„„„„„„„„„„„„„„„30 （四）有助于促生法律至上的观念和实践„„„„„„„„„„„„„„31 四、平衡型宪政的生成路径 „„„„„„„„„„„„„„„„„„„„„34 （一）教育改造„„„„„„„„„„„„„„„„„„„„„„„„„34 （二）政府自身改革„„„„„„„„„„„„„„„„„„„„„„„36 （三）民众参与„„„„„„„„„„„„„„„„„„„„„„„„„37 结 语 „„„„„„„„„„„„„„„„„„„„„„„„„„„„„„39 参考文献„„„„„„„„„„„„„„„„„„„„„„„„„„„„„40 致 谢„„„„„„„„„„„„„„„„„„„„„„„„„„„„„„42 攻读硕士学位期间发表的学术论文目录„„„„„„„„„„„„„„„„ 43 I 摘摘 要要 当前我国利益失衡严重，而随着人的权利意识和主体性意识的不断增强，必 然会进一步激化冲突。

面对这种冲突激化的局面，如果不改革，势必导致暴力革 命平衡型宪政给我们提供了一套解决利益失衡、缓和冲突的政治机制平衡型 宪政是指在冲突激化、利益失衡和人的主体性得到彰显的时代，以张扬人的主体 性为政治机制构建的前提， 通过政治制度建设大大增强弱势力量和适当限制强势 力量来培育多元均衡力量， 多元均衡力量以程序为依托相互妥协达致利益分配相 对平衡的宪政过程或状态 在冲突中寻求共识,达成妥协,是平衡型宪政解决冲突 的基本方式在社会学意义上,经冲突、共识到达成妥协,最终的结果是达致一种 平衡状态正是在这种意义上,我们说平衡型宪政是一种平衡机制以及由此达成 的平衡状态宪政意味着各种利益集团、政治力量的对立或斗争的过程及状态， 而平衡型宪政的确立和强化,使得各种对立要素达成某种程度的平衡同时平衡 型宪政正是为解决中国现实而设计的政治机制，突出了中国特色，并彰显了平衡 理念，所以才酝酿出“平衡型宪政”这种提法事实上 ,追求平衡型宪政的观念 源远流长，有着丰富的理论渊源如何达致平衡型宪政就成为我们迫切需要解决 的课题达致平衡型宪政需要三个结构性要素：一是张扬人的主体性；二是培育 多元均衡力量；三是依托程序进行妥协。

张扬人的主体性是达致平衡型宪政的前 提， 因为平衡存在于多方之间，而张扬人的主体性使得多种利益主体能够宽容并 存； 培育多元均衡力量是达致平衡型宪政的基础， 因为平衡要求各方具有对等性， 如果各方力量对比相差悬殊，就无平衡可言；依托程序是达致平衡型宪政的制度 保障， 因为平衡要求各方相互妥协，而程序由于其中立性可以在多元均衡力量中 提供妥协的基础由此可见，以上三者的结合、统一，就可以达致平衡型宪政 平衡型宪政将对我国的宪政建设具有重大的实践意义 平衡型宪政必将进一步弘 扬人的主体性，有助于培育多元均衡力量以最大发挥分权与民主的效用，有利于 更加注重程序性制度建设，有助于促生法律至上的观念和实践结合我国现在的 实际情况，平衡型宪政应由教育改造、政府主导推进与社会演进相结合的模式来 生成 关键词：关键词： 平衡型宪政； 人的主体性； 多元均衡力量； 程序； 路径 II Abstract On the current seriously imbalance between the interests of our country, the growing of persons’ rights and subjective awareness is bound to further intensify the conflict. In the face of intensification of the conflict, if we do not reform, it is bound to lead to violent revolution. Balanced pattern constitutionalism provides us with a political mechanism to resolve the imbalance between the interests and to ease the conflict. Balanced pattern constitutionalism means that in the era of intensification of the conflict, the imbalance between the interests and the highlight of persons’ subjectivity, with the stinking of the subjectivity of human being as the premise of building a political mechanism, through the political system to enhance the vulnerable power greatly and to restrict the strong power appropriately in order to cultivate multi-balanced forces, multi-balanced forces based on procedures mutually compromise to achieve a state of relatively balanced distribution of benefits in this constitutional process. In the conflict to seek a consensus, a compromise is the basic way of the balanced pattern constitutionalism to resolve the conflict. In the sense of sociology, by conflict, consensus and compromise, the final result is to achieve a balanced state. In this sense, we say that the balanced pattern constitutionalism is a balanced mechanism and a balanced state. Constitutionalism means the state and the process of the opposition or struggle between various interest groups and political forces, but the establishment and the enhancement of the balanced pattern constitutionalism make all kinds of opposite elements achieve a certain degree of balance. At the same time the balanced pattern constitutionalism is the political mechanism designed to resolve the reality of China, to highlight the Chinese characteristics and to demonstrate the concept of balance, so I think out this term “the balanced pattern constitutionalism“. In fact, the pursuit of the concept of the balanced pattern constitutionalism is a long history, having a wealth of theoretical origin. How to achieve the balanced pattern constitutionalism becomes the issue on our urgent need to resolve. To achieve the balanced pattern constitutionalism needs three structural elements: First, to stink the subjectivity of human being; Second, to III cultivate multi-balanced forces; Third, to compromise based on procedures. To stink the subjectivity of human being is the premise of achieving the balanced pattern constitutionalism, because there is a balance between parties, and stinking the subjectivity of human being makes parties tolerate and coexist; To cultivate multi-balanced forces is the basis of achieving the balanced pattern constitutionalism, as the balance requires the equilibrium between the parties, if the power between the parties differentiate greatly, there is no balance to speak of; Basing on procedures is the system protection of achieving the balanced pattern constitutionalism, because the balance requires the parties to compromise, and as a result of their neutrality the procedures can provide a basis for compromise in the multi-balan。