【作者】 刘刚；

【导师】 黄文艺；

【作者基本信息】 吉林大学 ， 法学理论， 2019， 博士

【摘要】 当前,我国提出了“法治国家、法治政府和法治社会一体建设”的思想。到2035年,我国还要实现“法治国家、法治政府和法治社会基本建成”的目标。如何判断法治社会基本建成,既是重大的理论问题,也是迫切的实践问题。社会是由行业组成的,法治社会的建成可以走一条行业法治之路。法治社会是社会领域实现法治化的治理状态,而行业法治可以理解为是指行业领域的法治化的治理过程。先有法而后才有法治,先有行业法而后才有行业法治。因此,要研究行业法治,需要先研究行业法;而要研究行业法,则需要先研究“行业”。改革开放后,我国立法实践中出现了大量“行业”入法现象,汇聚成“法律中的行业”这个独特命题。对“行业”入法现象的实证分析表明,“行业”已经从一个古老的经济概念变成一个新生的法律概念。“行业”入法现象在所有现行法律、行政法规和部门规章中总体上占到了三成,席卷了除诉讼法及非诉讼程序法之外的所有部门法,甚至现行宪法也对“行业”做出了明确规定,宣示了“行业”的宪法地位。“行业”在法律条文中的形式样态,包括行业规划、行业标准、行业自律、行业诚信、行业垄断、行业主体、行业协会和从业人员等。“行业”入法现象有力的支撑了行业法的存在,宣告了行业法治的潜在可能。“行业”入法现象是对行业在社会结构中的变迁的法律响应,行业法是法律社会化发展的最新表现。系统梳理行业法的历史研究成果,可以发现,虽然学界还存在分歧,但也形成了一些理论共识,即行业法是兼顾“硬法”和“软法”在内的体系。新兴的行业法有助于一并解决传统部门法体系的学科壁垒问题、稳定性不足的问题以及部门法的局限性问题。行业法应该继部门法之后,成为我国法律体系和法学体系中的新成员。行业法与部门法之间存在着两种关系:一是交叉与重叠关系,二是包含与被包含关系。提出行业法治的逻辑,建基于法治概念的宽泛性和灵活性。行业法治是一种“混合”法治,其内涵表现为“硬法”之治和“软法”之治的结合、依法监管与依法自治的结合、横向体系(各行各业的法治)和纵向体系(包括行业立法、行业监管、行业纠纷化解和行业自治在内)的结合。行业法治是一种“复杂”法治,其特性包括法治主体的多元性、法律规范的复合性、行业治理的差异性、运行机制的共治性和调整范围的全面性。行业法治是一种真法治,而不是假法治,其理念包括权利保护理念、公平正义理念、科学发展理念和自治理念。行业法治是一种有意义的法治。从法治发展维度看,行业法治既有助于拓展法治的理论空间,也有助于填补传统法治的短板,还有助于国家治理体系的完善。从行业发展维度看,行业法治既有助于推进多层次多领域依法治理、促进行业发展,也有助于确立行业治理的标准、规范行业发展,还有助于为新兴行业保驾护航。行业法治体现了行业与法治的互动关系,促进了法治发展和行业发展之间的良性循环。行业法治的产生基础包括经济基础、政治基础、社会基础、法律基础四个方面。其中,经济基础是指社会分工的进一步发展;政治基础是指政企分开、政事分开的体制逐步建立;社会基础是指行业组织的大量出现;法律基础是指行业法律体系的逐步完善。与法治社会一样,行业法治也包括主体要素、制度要素与实践要素。这三种要素共同促进行业法治的发展。与“行业”在法律条文中的主要形式样态基本一致,行业标准、行业协会和行业自治构成了行业法治的基本要素。行业法治中的行业标准是广义的行业标准,行业标准是一种“软法”,可以进一步促进行业法治的社会化、柔性化和可操作性。行业协会是行业法治的重要主体,行业协会通过参与行业立法、行业纠纷化解、行业监管和行业管理等来促进行业法治的发展。行业法治中的行业自治既是权利,也是权力。行业自治首先通过行业自治规范促进行业法治的发展,但是,在行业法治的运行中,行业监管与行业自治始终需要处于动态平衡的态势中,只有这样,行业自治才能最大限度的促进行业法治的发展。理想的行业法治是完美的,但是行业法治的现实运行,包括行业立法、行业监管、行业纠纷化解和行业自治等,还存在若干缺陷,因而需要采取有针对性的完善措施。其中,行业立法存在着行业分类难以精确、狭隘的部门本位主义、行业法律滞后、行业协会立法不完备、缺失跨行业的标准化协调机制等缺陷。对此,一是可建立专业工作委员会提出立法草案的体制,取代现有的行业主管部门主导立法的立法体制,并建立第三方如行业协会等接受立法机关委托起草行业立法的立法体制;二是应将行业标准的制定权赋予行业协会,取代现有的行政机关制定行业标准的体制,并建立跨行业的标准协调制度,加大推广综合标准制度;三是应及时修订行业立法。行业监管存在的问题包括重审批轻监管、事中事后监管体系不健全,信用监管存在体制机制缺陷,综合监管仍有待完善等。对此,一是需要将监管理念从“重审批轻监管”转变为“轻审批重监管”,同时强化事中事后监管;二是政府应建立包括企业、非企业和个人信用信息在内的全国统一信息共享平台,并进一步发挥行业协会在信用监管中的作用;三是应当从监管主体、监管模式、监管手段和监管过程等四个方面完善综合监管体制;四是对新兴行业应遵循政府适度监管的原则。行业纠纷化解存在行业调解制度公信力有待加强、认同度和成功率都不高、行业调解程序和行业仲裁等相关法律制度缺失等问题。对此,一是应进一步增强行业协会的代表性,提升行业调解的公信力;二是应积极推动行业协会设立专业性调解组织,提高行业调解人员的准入资格条件,以提升行业调解制度的利用率和成功率;三是应当建立专门的行业调解程序;四是健全行业仲裁制度,可考虑由行业协会组建行业仲裁委员会,并修订《仲裁法》,赋予行业仲裁应有的法律地位;五是鼓励行业组织制定标准化法律文本,尽可能减少行业纠纷的产生。行业自治方面,存在着立法上重“行业自律”轻“行业自治”、行业协会自治权力不够、不利于行业自治的固有缺陷难以消除等不足。对此,一是应该突出“行业自治”的理念,将法律条文中的“行业自律”修改为“行业自治”;二是政府彻底退出行业协会的运作,不再干预行业协会的内部事务;三是赋予行业协会完整的自治权力,只要不违反法律,行业运行过程中产生的问题皆由行业协会自行解决。同时,国家需保留对行业协会的行政监督和司法监督。综上,通过对“行业”入法现象进行实证分析,对行业法和行业法治的研究成果进行历史分析,对行业法治的内涵、特性、理念、实践意义等问题进行概念分析、对行业法治的产生基础和基本要素等问题进行综合分析,行业法治的理论框架体系得以初步建立。只要有效解决行业法治在现实运行中的不足,作为法治社会的建设途径,行业法治一定会拥有美好的未来。期待有朝一日,行业法治成为中国特色社会主义法治体系的有机组成部分,行业法治理论成为中国特色社会主义法治理论的有机组成部分。更多还原

【Abstract】 In recent years,China has been committed to promoting the integrated development of the rule of law in country,government,and society,which is expected to be approximately in place before 2035.It is not only a major theoretical issue but also an urgent practical issue to judge whether the rule of law in society has been almost achieved.Based on the fact that society is composed of various industries,the establishment of the rule of law in society can be achieved through establishing the rule of law in various industries.Just as the rule of law in society is a situation where the rule of law in social field has been realized,the rule of law in industry can be understood as a governance process in which the rule of law is implemented in various industries gradually.As we know,law is a prerequisite for the rule of law.Accordingly,the rule of law in an industry can be achieved only when corresponding laws are implemented in this industry.Therefore,to study the rule of law in an industry,it is necessary to study all relevant laws in this industry first.Likewise,to study the laws in an industry,an in-depth research of "industry" should be conducted at first.Since the reform and opening up,a large number of laws regulating relevant industries have been enacted in China,a so-called phenomena of "industry into law" has emerged in many industries,which brings about a unique theme of "industry in law".Empirical analysis of the phenomenon of "industry into law" shows that the definition of “industry” has changed from an old economic concept to a new legal one.And the phenomenon of "industry into law" can be observed in about 30% of existing laws,administrative regulations and administrative rules except procedural law.What’s more,"industry" is also stipulated in the current Constitution,this declares the constitutional status of "industry" in China.In general,the forms of "industry" explained in various laws include industry planning,industry standards,industry self-discipline,industry integrity,industry monopoly,industry entities,industry associations,industry employees etc.Due to the existence of "industry into law" phenomenon,it can be said that the discipline of industry law does exist,and the rule of law in industry is quite possible.The phenomenon of “industry into law” is a legal response to the changes of all kinds of industries in the social structure.The industry law is the latest manifestation of the development of legal socialization.Through systematically reviewing the historical research results concerning industry law,it can be found that although there are still divergence of academic viewpoints,some theoretical consensus has been reached.It is agreed that the industry law is a system consisting of "hard law" and "soft law." The emerging industry law help to address some problems such as the barriers existed in different disciplines under traditional sectoral system,as well as its instability and limitations.Therefore,industry law should be recognized as a new member not only in China’s legal system but also in the system of legal science like sectoral law.Between industry law and sectoral law,two types of relations can be observed,that is,in some cases they are intersected and overlapped,while in other they are included by each other.The logic of proposing the rule of law in industry is mainly based on the broadness and flexibility of the concept of the rule of law.In a sense,the rule of law in industry is a kind of rule of law with a "mixed" character,because it is a combination of the rule of "hard law" and the rule of "soft law",legal supervision and legal autonomy,as well as the horizontal system(the rule of law in various industries)and the vertical system(including industry legislation,industry regulation,industry dispute resolution and industry autonomy).Meanwhile,the rule of law in industry is very complicated.It is is a reflection of the pluralism of legal subjects,the diversity of legal norms,the differences of industry governance,the co-governance of operational mechanisms,and the comprehensiveness of regulation scope.In view of the fact that rights protection,fairness and justice,scientific development and autonomy should be implemented in the process of the rule of law in industry,it can be asserted that the rule of law in industry is not fake but true.Finally,the rule of law in industry is very meaningful.From the prospective of the development of the rule of law,the rule of law in industry is conducive to expanding the theoretical space of the rule of law and making up for the shortcomings of the traditional rule of law.And further more,it also contributes to the improvement of national governance system.From the prospective of industry development,the rule of law in industry not only helps to promote governance in multi-level and multi-disciplinary to advance the develoment of indutry,but also helps to establish standards for industry governance to regulate industry development and provide shelter for emerging industry.The rule of law in an industry can promote the development of this industry while in turn the development of an industry can also help promote the rule of law in this industry.This is actually a virtuous circulation.To achieve the rule of law in industry,four foundations including economic,political,social,and legal foundation are indispensable.The economic foundation refers to the further development of social division of labor.The political foundation is related to the gradual establishment of political systems characterized by separation of government and enterprise,and separation of government and institution.The social foundation involves the emergence of a large number of industrial organizations.The legal foundation means that law system in an industry is gradually improved.Like the rule of law in society,the rule of law in industry also includes three elements such as subject,rule and practice,which are essential to promote the development of the rule of law in industry.In addition,as the main embodiment of "industry" in the law,industry standards,industry associations and industry autonomy constitute the basic elements of the rule of law in industry.Industry standard is a broad concept,it is a kind of "soft law" in a sense,and can further promote the socialization,flexibility and operability of the rule of law in industry.Industry associations are important participants in the rule of law in industry,and they can promote the development of the rule of law in industry by participating in legislation,dispute resolution,regulation and management.Industry autonomy is both rights and power.It first promotes the development of the rule of law in industry through a lot of autonomy norms.However,in the process of operation of the rule of law in industry,only when supervision and autonomy are always in a dynamic balance,can industry autonomy promote the development of the rule of law in industry in a maximum way.In an ideal condition,the rule of law in industry is perfect.But in actual operation,the main components that determine the effectiveness of the rule of law in industry,including industry legislation,industry regulation,industry dispute resolution and industry autonomy,still have some shortcomings.So it is necessary to adopt suitable measures to improve them.In terms of industry legislation,there are still some difficulties to classify the industry accurately,narrow departmentalism can be observed in many relevant government agencies when drafting bills,industry laws are lagging behind actual needs,the legislation on industry associations is incomplete,and cross-industry standardization coordination mechanisms is lacked.To solve all these problems,the first thing is to establish a legislative system as professional working committees instead of government agencies to draft bills.Third parties such as industry associations should be entrusted by legislature to draft bills.Secondly,industry associations should be empowered to formulate industry standards currently undertaken by relevant government agencies.It is also necessary to establish a system that harmonizes the standards of different industries and promotes comprehensive standards to regulate different fields when viable.Thirdly,industry legislation should be revised in a timely manner.With regard to industry regulation,the phenomena of excessive emphasizing approval but neglecting supervision exist in many areas.Regulation system for operational and post-operational oversight is far from perfect.The credit supervision has defects in institution level as well as mechanism level,and comprehensive supervision still needs to be improved.To cope with all these problems,the regulatory concept pursued by all government agencies should be changed from “emphasizing approval but neglecting supervision” to “emphasizing supervision rather than approval”,and operational and post-operational oversight should be strengthened.Secondly,the government should establish an unified national credit information platform to collect corporate,non-enterprise and personal information to let industry associations play a more important role in credit supervision.Thirdly,a comprehensive supervision system should be optimized in terms of four aspects such as supervision subject,supervision mode,supervision means and supervision process.Fourthly,for some emerging industries,government should follow the principle of moderate supervision.Regarding the industry disputes resolution,the credibility of industry mediation system needs to be strengthened,and its recognition and success rate are not high.Relevant legal systems such as industry mediation procedures and industry arbitration are also missing.To deal with these issues,firstly,it is needed to further expand the representativeness of industry associations and enhance the credibility of industry mediation.Secondly,in order to enhance the recognition and success rate of industry mediation,industry associations should be promoted to establish professional mediation organizations,and the qualifications for industry mediators should be improved accordingly.Thirdly,special industry mediation procedures should be established.Fourthly,to improve the industry arbitration system,it may be considered that industry associations set up an industry arbitration committee and revise the Arbitration Law to give industry arbitration a proper legal status it deserves.Fifthly,industry organizations should be encouraged to develop standardized legal dispute resolution texts to minimize the occurrence of industry disputes.As for industry autonomy,there are such deficiencies in the legislation as emphasizing "industry self-discipline" but neglecting "industry autonomy".The autonomy of industry associations is not good enough to eliminate some inherent defects.To solve these problems,the concept of "industry autonomy" should be highlighted and in some legal provisions,"industry self-discipline" should be changed to "industry autonomy".The government should also completely withdraws from the operation of industry associations and no longer interferes with the internal affairs of industry associations.Last but not least,it is necessary to offer industry associations complete autonomy.As long as they do not violate relevant law,all problems arising in the course of industry operation should be solved by industry associations themselves.At the same time,relevant state organizations must still retain administrative supervision and judicial supervision over industry associations.In summary,after the empirical analysis of the phenomena of "industry into law" and the historical analysis of existing research results,especially a comprehensive analysis of the connotation,characteristics,idea and practical significances of the rule of law in industry,and comprehensive analysis of the foundation and basic factors of the rule of law in industry,a kind of theoretical framework was established for the rule of law in industry in this paper.At last,in response to the problems that hinders the development of the rule of law in industry,some corresponding comments and suggestions are proposed.There are many reasons to believe that as an important part of the rule of law in society,the rule of law in industry must have a bright future.It is expected that one day,the rule of law in industry and its theory will respectively become an integral part of the system and the theory of socialist rule of law with Chinese characteristics.更多还原