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风险社会立法机制研究

ISBN:978-7-5161-2221-1

出版日期:2013-03

页数:426

字数:365.0千字

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基金信息: 本书为作者所要研究的三部曲之一,另两部作品为《风险社会权利保障研究》、《风险社会法治与维稳研究》。;“基层政府维稳的法治反思与制度构建”(12YJC820035)资助,系其阶段性成果。;本成果系教育部人文社科青年基金项目 展开
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随着全球风险社会的到来,人类正处于日益严峻的不安之中。要从法律层面应对风险社会的现实需求,必须从理论基础和制度建构上对风险社会的立法机制进行系统研究,这也正是本书的研究主题。本书探讨风险社会中立法机制将发生何种变化以及立法机制如何回应风险社会需求,围绕此一主题,主要研究了风险社会立法机制现实状况、理论基础、价值定位、基本原则、主体制度、权力制度、程序制度等问题。

With the development of risk society,human is increasingly in a state of severe anxiety.In order to meet necessity in risk society from legislative aspects,it is necessary to conduct systematic study on legislation mechanism in risk society from the theoretical basis and system construction.At present the researches on risk society and legislation studies are respective dispersion and lack of comprehensive study,which are unable to provide powerful theoretical supports for legislation in risk society.And then legislation could not provide sufficient legal basis in the face of risks in risk society.Therefore,the thesis makes a special study on legislation mechanism in risk society,discussing what kind of changes legislation mechanism would occur and how it replies to necessity in risk society.Focusing on this theme,the paper mainly studies on the present condition of legislation mechanism,the theoretical basis,value orientation,basic principles,subject system,power system,procedure system and other issues,which is divided into nine chapters.The first chapter is a review on legislation mechanism in risk society.This chapter reviews and evaluates research achievements in theory of risk society and theory of legislation science at home and abroad.It is found that there are few comprehensive studies of risk society and law,and the results on response to risk society in the field of legislation are even less.Therefore,it is of great theoretical significance to analyze legislation mechanism in risk society.The second chapter is about current situation of legislation mechanism in risk society.China has entered into a high-risk society at present.The risks are including foreign risk and domestic risk,and the former can be divided into in-put risk and involved risk and the latter is composed by the risk of pre-industrial society,industrial society risk of risk in risk society.The main characteristic of social risk in China is complex that risk overlying and coexistence.As judicial and administrative systems are deficient,the only choice for undertaking the important task of dealing with risk society in China is to depend on legislative mechanism.As to international situation,every country takes legislation as primary means to cope with risk society and has formed a relatively sophisticated risk legislation mechanism.China should take example by common experience of international community.The third chapter is about theoretical basis of legislative mechanism in risk society.It starts from the concept of risk law,which refers to uncertainty of violation of fundamental civil rights of citizens caused by allocation of risk conducted by state power.The concept of risk law operating in legal system depends on legislative process.The legislation mechanism is an organic whole which is about the process of interaction among the elements,methods and related principles.Its elements include:legislative value,the principle of legislation,legislative body,legislative authority,legislative procedures,legislative process,and legislation techniques.The target of rule of law in risk society is risk legal country,which can be constructed from power dimension and rights dimension.The legislation mechanism in risk society is a kind of responsive legislation mechanism,risk in which turns to a new kind of legislative principle,named legislative risk principle.The fourth chapter is about value orientation of legislative mechanism in risk society.The value of risk itself is neutral,while people’s risk activities have value preference.Security and order value is the primary value in risk society and the value of fairness and justice is the fundamental value.Risk legislation should integrate values in multi-dimension value system.The value integrating has the following characteristics:openness,dynamic,technicality, great practical criticism and urgency,and the purpose of which is to choose an optimal decision.Security and order value may be in conflict with the value of fairness and justice,which requires risk legislation to integrate values.The integration path means from broad sense to understand security and order value and from a more profound perspective to understand the value of fairness and justice.The fifth chapter is about principle choice of risk legislation in risk society.The basic principle of risk legislation has great importance to smoothly carry out legislative activities.Its selection criteria are:standards of reality,standards of value,legal standards and standards of property.According to these standards,the thesis chooses democratic principle,scientific principle,efficient principle,basic principle of protecting the rights and principle of risk as the basic principles of risk legislation.The requirement of risk society for legislative democratic principles is that ensure open and extensive communication for essence opinions.Public basic rights are under a state of reduction and limitation in risk society,which should especially pay attention to guarantee basic rights.Democratic principle of legislation is means and tool,and basic principle of protecting the rights is purpose.The realization and perfection of the former contributes to the latter.The requirement of risk society for legislative scientific principles is that legislation idea,legislation mechanisim and legislation technique should be scientific.With regard to the application of technique in risk legislation,it should prevent technique utopia.Risk society also is concerned with efficient principle of legislation.Scientific principle and efficient principle are as the means and objectives,effective achievement of either of which would help the realization of the other.The sixth chapter is about the subject system of legislative mechanism in risk society.The connotation of legislative subject should in accordance with practical needs in risk society.From a broad functional prospective,legislative subject includes the decision body and the participation body.The legislative subject must conduct risk perception,which is a legislative reflection of legislator and the public’s consciousness on risk issues.Besides under the influence of general obstructive factors,risk perception also comes under the impact of understanding the role of law and the limited capacity of legislators.As there are difficulties in risk perception,it is necessary for legislative subjects to have risk communication.Risk communication has its functions and models and communication mechanism,which is a way for the public to participate in the legislation and contributes to achieve the acceptability of risk.The seventh chapter is about core construction of legislation mechanism in risk society.The legislative authority is the core problem of legislation mechanism,including distribution system and operational system of legislative authority.The distribution system in risk society is that traditional legislative authority belonging to lawmaker(legislative body)remains the same,but in the face of new social risks,though decision-making power of legislation belonged to lawmaker is still dominant,its partial power should transfer to the public under special circumstance.At the same time,the public’s participation right of legislation should obtain enough attention under the situation of risk society.The operational system of legislative authority is still constrained by procedural system.The general procedure of legislative authority operates in risk society is that risk awareness belonged to lawmakers passes communication procedure and evaluation procedure and then risk analysis of legislation comes into being.And the risk communication procedure and risk evaluation procedure are special legislative procedures in risk society.The decision model of legislative power in risk society differs from that in industrial society.The decision model should realize the transition from industrial society model to risk society model.Public participation of legislation in risk society possesses legitimacy and special function.And public’s direct participation in legislation is more emphasized in risk society.Public participation not just exercises participation rights;the public should be given partial decision-making power in affairs in some fields.The eighth chapter is about procedural system of legislation mechanism in risk society.As procedural system shapes the legality and legitimacy of risk legislation,it is necessary to pay attention to the construction of it.The core of procedural system of legislation mechanism in risk society is risk assessment procedure.Risk assessment of legislation would encounter obstructive factors,which includes factors caused by legislation itself and factors aroused by risk assessment.Risk assessment procedure has to apply appropriate assessment method which is provided with special standards.From the time,it can be divided into special system of pre-risk assessment and general method of risk assessment.The important content of risk assessment procedure is the construction of evaluation index system.The content of index system is that the objective of total layers is to observe the urgency of risk legislation in risk society,and to establish five norm layers and twenty indexes under the total layers.The specific procedures of risk assessment can be divided into common procedures and special procedures.The former consists of three parts,including starting,implement and response.And the latter emphasizes that risk assessment procedure of legislation is a kind of approval procedure.The ninth chapter is about review and development of risklegislation in China.Although to some extent risk legislation has problems,which can be overcome when compared with its effect.Risk legislation pays more attention to promote development with the help of risk between control and development.Although risk legislation in our country has achieved success to some extent,there are more problems and the current situation is difficult to satisfy.Risk legislation just starts in China.A case study of SARS shows that there are many factors have influence on risk legislation in China.And the case study of demolishing villages indicates that legislation at present still lacks corresponding risk awareness,risk communication and risk assessment.Even after eight years,risk legislation in China is still at the fumble condition.In order to respond the practical needs in risk society,the thesis proposes a fundamental policy and framework for action on risk issues.It is not difficult to find that the thesis first systematically investigates into legislation mechanism under the context of risk society after making an overview of the existing related research achievements.It is the unique research way of the paper to study legislation mechanism based on the perspective of risk society.The innovations of this paper include that studying changes in legislation mechanism and responses of legislation mechanism to risk society and adopting multidisciplinary methods,especially statistical method.Keywords:Risk Society;Legislation Mechanism;Risk;Legislation

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GB/T 7714-2015 格式引文
何跃军.风险社会立法机制研究[M].北京:中国社会科学出版社,2013
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MLA 格式引文
何跃军.风险社会立法机制研究.北京,中国社会科学出版社:2013E-book.
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APA 格式引文
何跃军(2013).风险社会立法机制研究.北京:中国社会科学出版社
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