【作者】 柳飒；

【导师】 陈晓枫；

【作者基本信息】 武汉大学 ， 宪法学与行政法学， 2011， 博士

【摘要】 在“走进权利的时代”里,权利研究成为法学的热点之一。本文以权利史为视角,梳理近代中国公民基本权利在价值、规范、保障三方面的样态,分析其变迁的内在机理和外在机制,探讨制约近代中国公民基本权利实现的因素,以作为当今的借鉴。全文在导论和结语之外,分为四章。第一章研究基本权利价值。首先,分析了近代中国基本权利观念的引入和构建。驻外公使的出洋笔记、香港商人的经商感悟、国外法律的译著等使中国人接受了“权利”一词,绅商阶层敏锐地意识到利益的保障可以转化为权利话语,通过权利诉求达至权力的获取是时代的新“路径”,于是,绅商们对“权利”进行了知识性的重构和权力期望值的匹配,形成了“本土化”的权利外观和倚重政治权力的权利内核。其次,分析了预备立宪时期基本权利观的层级分化状况。出洋大臣们的权利观念属于典型的统治型,其精髓是严密贯穿限制法则,将权利落在“纸上”；立宪派的权利观念属于典型的焦灼型,其特征是如果自由有利于国家富强就举自由,如果专制有益于国家富强就反自由,权利的核心始终是参政权；革命派的权利观念属于典型的反叛型,其目标明确指向颠覆现有政权,所以,权利核心是革命权。再次,分析了军阀制宪时期基本权利观的发展与变异。这一时期虽然有反自由与倡自由两个对垒的阵营,也有针锋相对的言论交战,但其究里有着“同一性”：无论是反自由还是倡自由都是为国家发展而着想的,无论是争夺权利还是放弃权利都是不“道德”的,都用一元价值观赋予了权利某些强制性的要求。于是,两方合力将权利推进了道德的“峡谷”。最后,分析了国民党制宪时期基本权利观的“主义”化倾向和表征。国民党、共产党、知识界各派人士都热衷于建构自己的理论体系,大谈“主义”,并坚定实践着“主义”。权利在如此语境下丧失了独立性,只是更高价值或其他价值的附庸,以“阶级”、“敌我”为界分,随“革命程序”、“革命重心”而转化,依斗争需要或“赋予”或“剥夺”,实质成为了附条件、附期限才可分赏的“胜利果实”之一。第二章研究基本权利规范。首先,对近代中国基本法中的自由权体系进行整理。一方面比较基本法中自由权规范的变迁,一方面追寻自由权在实证法律中的变异,发现与西方早期自由权体系相比较,在权利类型与内容的规定上大致接近,但因为程序性的规定较少使权利规范过于简洁而内涵模糊,并由于大都采法律间接保障方式,基本法中的权利规范实属“摆设”,真正规范权利保障的是各色法律、法规。下位实证法往往是统治意志的直接贯彻,又是社会行为模式的直接规范,自由和权利在实证法律中发生了根本性质的变更。其次,对近代中国基本法中的参政权体系进行整理。比较基本法中参政权规范的变迁,追寻参政权在实证法律中的变异,结论是：在选举法中设置资格限制、实行特殊选举或直接圈定,实际上就剥夺了大多数人的参政权。接着,对近代中国基本法中的受益权体系进行整理。比较基本法中受益权规范的变迁,求证受益权在实证法律中的体现,发现下位法或缺失或克减,都导致受益权的享有大打折扣。最后,对近代中国基本法中的社会权体系进行整理。比较基本法中社会权规范的变迁,求证社会权在实证法律中的体现,得出结论为：社会权的实现需要国家积极的“能动”,国家因此也掌握了权利的主动。在服务政权统治方面积极作为,在利益投入方面消极懈怠,社会权因此而被“转向”。第三章研究基本权利保障。首先,考察行政控制与基本权利保障的关系。通过对公民自由权在政府行政控制下的境况分析,发现近代中国政府对于公民自由权没有“不干涉”的认识,更没有起到保障功能,而是“积极”的渗透、侵入、削夺。大量的行政法规对于公民自由权进行限制,在法制层面,权利已然缺损；强势的行政管理不断侵蚀公民自由权,主导、监督到全面掌控,权利在实有层面变成了法定义务,变成了没有选择的服从;加之非法治暴力统治手段的滥用,公民自由权随意被剥夺,毫无保障可言。然后,考察司法救济与基本权利保障的关系。近代中国大“问题”在行政控制中已被“解决”,小“问题”才会走司法程序,可是,在程序保障不到位、司法不独立,缺失违宪审查的情况下,被损害的权利很难得到公正的矫正,无救济则无权利,公民基本权利的实有状况已一目了然。第四章研究近代中国公民基本权利变迁机制。首先分析了社会背景与权利变迁的关系,正是传统文化、政治概念与社会事件的互动,重构并塑造了中国式的权利样态。其次分析了意识型态与权利变迁的关系,在深重的民族危机的笼罩下,民族主义、国家主义自然是强劲的,自由主义“先天不足”、“后天失调”,难以“存活”,权利本位的理念无法解决动荡的社会境况,故不为接受、信仰。最后分析了权力模式与权利变迁的关系,君权式微时,权利诉求浪潮此起彼伏,不断涌现新高；军权无端时,权利常常处于“无常”之状态,非法治的暴力使法定的基本权利形同虚设；在党权的凌厉之下,民权被训导、被监护、被代表,实质就是被限制。结语则集中概括了近代中国公民基本权利体制中的“短板”。在观念层面,国家自由、团体自由始终统摄着个人自由,权利道德化后则失去其“自主性”,成为其他价值的附庸；在法制层面,法律、法规才是社会行为模式的规范,宪法只是政治资源的“器物”,于是,宪法上的基本权利受制于法律,还受制于行政紧急权；在实证层面,政府权力的强势,司法救济的微弱,违宪审查制度的缺失,都导致个人基本权利实际处于毫无保障之境地。本文的观点一是：权力本位的思维模式重构了中国近代权利的样态,权利是权力的衍生物,没有独立价值。观点二是：在民族情结深厚的后发国家,自由主义难以生根,集体本位主义思想统摄着权利的认知。观点三是：近代中国公民的基本权利受制于法律,受制于行政紧急权,受制于政府能动性,受制于司法救济的缺失,实际上等于没有权利可言。观点四是：依据国权、实证法律、行政权对权利的凌驾与司法救济的薄弱,本文认为近代中国权利体制中存在着“短板”,权利“短板”的形成既有传统文化模式的影响,也有社会生存局势的无奈,短板现象是法律移植、仿袭过程中进行文化重构的重要路径。更多还原

【Abstract】 In "the age of rights", the study of rights has become one of the hot topics in law. This paper, in the view of the history of rights, will explain the mode of the fundamental rights in modern society from the perspectives of value, norm and security. What’s more, the paper will also analyze the intrinsic and external mechanism of the transition of rights and discuss the factors that restrict the realization of the fundamental rights in modern time so as to use it for reference for the present society. Apart from the introduction and conclusion, the whole thesis consists of four chapters.The first chapter is a research focusing on the value of fundamental rights. Firstly, it gives an analysis on the introduction and establishment of the idea of fundamental rights in recent and modern China. The notes taken abroad by the ambassadors, the HK businessmen’s perception of business and the translation of the foreign laws made the Chinese begin to accept the word "right". The businessmen were shrewdly aware that interests could be transformed into the discourse of rights and the power could be obtained through appeals for human rights. Therefore, the businessmen gave the "rights" a kind of intellectual reconstruction and a matching with the power expectations, in result, forming a new kind of "rights" with a localized appearance and a politics-based core. Secondly, it analyzes the hierarchy differentiation towards the idea of the fundamental rights in the period of "Ready for constitutionalism". The idea of the ministers having been abroad typically belonged to the dominating type, whose essence was to strictly penetrate the restriction laws and write the "rights" down on the papers; the idea of constitutional advocators belonged to the deeply worried type. If freedom was favorable to make the country rich and powerful, they would support freedom, and if despotism was favorable to strengthen the country, they would oppose freedom, whose essence of rights was the right to participate in public affairs; the idea of the revolutionary belonged to the typically rebellion type, whose goal explicitly aimed at subverting the existing government, therefore, the essence of the rights was revolution. Thirdly, it analyzes the development and variation of the idea of fundamental rights in military stage. In this period, though there were two opposed groups with different attitudes toward freedom with a lot of speech warring, they still had something in common, that is, they were both for the purpose of the nation’s development and in their view, both striving for rights and renouncing were "immoral" and they both endowed rights with some compulsory requirements based on the one-dimension value. Therefore, both sides together impelled rights into the "canyon" of morality. Lastly, it analyzes the tendency to "doctrine" and characterization of the idea of fundamental rights in constitutional period of the Kuomintang. Kuomintang, the Communist Party and people of all kinds in intelligentsia were all wild about establishing their own theoretical system, talking about the "doctrine" and firmly carrying on it. In this kind of context, the right had lost its independence and became the dependency of the higher or other values. It might be divided based on "class" or "friend or foe", it might be transformed according to "revolutionary process" or "revolutionary centre" and it also might be "endowed" or "deprived" according to struggle needs. Substantially, it became one of the "fruits of victory" shared attached to requirements and deadlines.The second chapter is a research focusing on basic norms of rights. Firstly, it sorts out the system the right of freedom in basic laws in modern China. On one hand, it compares the transition of the norms of the right of freedom in basic laws; on the other hand, it tries to find out the variation of the right of freedom in empirical laws. Compared with the early system of the right of freedom in the west, our system is similar in types and content, whereas less procedural formulation leads to over briefness and vagueness of the norms. Besides, mostly indirectly secured by laws, the norm of rights in basic laws is actually a kind of "decoration" and what really ensure the rights are various laws and regulations. The hypostatic empirical method is usually the direct implement of the will of the ruling class and also the direct norm of social behavior pattern, so in empirical laws freedom and rights have made a essential change. Secondly, it clears up the pedigree of suffrages in the basic laws in recent and modern China. After comparing the transition of suffrages and finding out the transition of suffrages in empirical laws, we can come to a conclusion that in electoral law, setting restriction on candidacy, special selection or direct designation has actually deprived most people of their suffrages. Thirdly, it clears up the pedigree of beneficial rights in the basic laws in recent and modern China. Through comparing the transition of the norm of beneficial rights and proving the embodiment of it in empirical laws, we find that the lack of hypostatic laws will affect the realization of beneficial rights. Lastly, it clears up the pedigree of social rights. Through comparing the transition of the norm of social rights and proving the realization of it in empirical laws, we come to a conclusion that the realization of social rights depends on the "activity" of the country and at the same time, the country will master the "activity" of rights. The service to the regime was given much attention to and the beneficial input is passive and sluggish, for which the social rights were swerved.The third chapter is a research focusing on the foundation for basic rights. Firstly, we analyze the relation between administrative control and the foundation for basic rights. The situation analysis of civil liberty under the administrative control of the government reveals that the government of modern China has no awareness of not interfering with civil liberty, not to mention its function of security. But rather, the government actively penetrates, invades and even deprives civil liberty. Abundant administrative regulations set limits to civil liberty, so there are no rights in legal dimension; compelling administration consistently encroaches civil liberty, from domination through supervision to overall control. Therefore, rights actually are transformed into legal obligations and obedience without alternative; in addition, abuse of illegal ruling means of violence causes arbitrary deprivation of civil liberty, not to mention its security. Then, there comes the analysis of the relationship between judicial relief and security of civil liberty. In modern China, major problems are solved in administrative control and only minor problems undergo judicial process. Nevertheless, under the circumstance of poor procedural protection, dependent judicature and lack of unconstitutional review, damaged rights can hardly receive just correction, no relief implies no rights, thus we can have a clear glance of the real situation of the possession of citizens’ fundamental rights. The forth chapter is a research focusing on the change mechanism of basic rights in recent and modern China. Firstly, it analyzes the relation between social background and the transition of rights. It was the interaction between traditional culture, political concepts and social events that reconstructed and modeled the rights in Chinese type. Secondly, it analyzes the relation between ideology and the change of rights. In the background of the national crisis, the influence of nationalism is very strong. Liberalism is difficult to survive because of the "congenitally deficient" and "acquired disorders". The rights-based idea can not deal with the turbulent social contexts, so it can not be accepted. Lastly, it analyzes the relation between social contexts and the change of rights. When the monarchical power declines, the appealing for rights becomes very active; when it is in the period of military dictatorship, the state of the rights are often in a "uncertain" place and the illegal violence makes the legal rights exist in name only. Under the smashing Party Power, civil rights are taught, guarded, represented and in essence, restricted.The conclusion part concentrates on summarizing the "short slab" of the basic rights in recent and modern society. In the idealistic level, the liberty of the nation and the liberty of a group always govern the personal freedom and when the right is moralized, it lose its "autonomy" and becomes the dependency of other values; in the legal level, laws and regulations are the true standards of social behavior model, and constitution is just the implement of political resources. Thus, the basic rights in the constitution are enslaved to laws and administrative emergent power; in the empirical level, the mighty government power and weak judicial relief both make the basic personal rights in an unprotected situation.View one:The thinking model of power standard reconstructs the state of the rights in recent and modern China; right is the derivant of power and has no independent value.View two:In the late developing countries with a deep national complex, liberalism is not able to survive and collectivism controls the cognition towards rights.View three:In modern China, citizens’ basic rights are restricted by laws, administrative emergency power, governments’ initiative and the lack of judicial relief, which actually means no rights.View four:according to overriding by national rights, empirical laws and executive power on rights and weakness of judicial relief, this thesis argues that there is a "short slab" in the system of rights in modern China. The formation of "short slab" can be attributed to influence of traditional cultural model and helplessness under the situation of social survival."Short slab" phenomenon is an important way of culture reconstruction in the process of legal transplant and imitation.更多还原