【作者】 潘顺；

【导师】 陈洪江；

【作者基本信息】 广西师范大学 ， 马克思主义理论与思想政治教育， 2005， 硕士

【摘要】 “依法治国,建设社会主义法治国家”是中国共产党在新形势下提出的治国方略,它的提出标志着中国共产党执政理念的重大转变,是党加强执政能力建设的重要环节,是迈向政治文明的必由之路。法治的本质是保护公民的权利,依法治国的核心是约束和治理政府权力。从来源看,政府权力是为了保障公共福祉而设立的,但是由于政府权力掌握了社会资源和各种强制手段,使它变得容易对公民权利造成损害。城市房屋强制拆迁是中国现代化进程中不能回避的一个热点问题,其中发生的许多事例折射出中国公民权利保护亦喜亦忧的现状,反映出广大公民对政府建设的诸多期待,非常能够引起人们对公民权利保护和政府权力行使二者关系的深刻思考,并且容易使人在思考中强化对依法治国方略的认同,促使人们产生想为中国法治建设作出一点什么的想法。有鉴于此,笔者在导师陈洪江博士的指导下,结合城市房屋强制拆迁中的典型案例对这一问题进行了探索。全文除了绪论和结语外,共分四个部分,其中第二、三、四部分是论文的重点。在绪论中,笔者对论文所涉及的概念(如强制拆迁、法治等概念)及其运用语境作出了阐释和界定。并对本文的创新之处和写作方法进行了说明。第一部分:从中国城市化进程的加快谈起,指出城市化是中国经济社会发展的趋势,城市功能的更新换代和现代化品位也是城市发展的必需,这样就需要对部分城市房屋进行拆迁,从而提出了拆迁中的公民权利保护问题。第二部分:从标本解读中探讨城市房屋强制拆迁中的公共利益与公民权利保护。这一部分内容首先写出湖南嘉禾城市房屋强制拆迁等三个案例,然后运用公共利益理论分析说明有的强制拆迁是假“公共利益”之名,有的强制拆迁虽然是为了公共利益,但是公共利益的实现偏离了正当程序,从而侵害了公民权利。紧接着文章指出强制拆迁侵犯了被拆迁户7 个方面的公民权利:生命健康权、财产权、劳动保障权、知情权、公平交易权、司法救济权和重大社会事务参与权。这一部分最后对公民权利理论和公民权利保护的重大意义进行了探讨:法治建设要以“权利本位”作为价值取向,公民权利保护能够保障社会主义市场经济的健康运行,能够为社会稳定奠定坚实的基础,能够大大促进政治文明的进步,能够大大加快中国法治现代化的进程,能够为社会主义和谐社会的建立打下了坚实的基础,能够为人的解放和全面发展提供广阔的前景。第三部分:现代社会对法治的威胁主要不是来自公民个人,而是公共权力和政府工作人员,依法治国的重点是依法治权,而治权的重点又在于治理政府权力从而确保依法行政。政府权力是国家权力中最为活跃的权力,它的活跃程度与国家事务的千头万绪成正比,社会的复杂性为政府权力创造了自由裁量甚至可以创制行政法规的广阔空间。政府权力极容易膨胀,它是最需要自由却又最容易自由无度,最需要控制却又是最难控制的权力。对政府及其工作人员必须套上责任的枷锁,并给予有效的监督,才不易被滥用。本文这一部分在对法治理念作进一步探讨的基础上,提出在依法治国的背景下,政府必须是法治政府、有限政府、责任政府和服务政府,并且对政府在强制拆迁中所能发挥的作用进行了探讨,紧接着提出要想增强政府工作人员在依法治国方略中的角色意识,必须从以下几个方面努力:(1)加强正确的权力观教育和法律法规的学习。(2)加大政府更多还原

【Abstract】 The state policy “run the country according to the law and build the socialist country governed by the law”is put forward under the new situation by the Communist party of China . It indicates that the Communist Party of China is changing greatly the idea in power. It is the important link that the Party strengthens the construction of ability of administration; it is an only way of marching toward the political civilization. The essence of nomocracy is protecting the citizen’s right, the core of running the country according to the law is to restrict and manage government’s power. At the mention of the source, government’s power is set up to ensure public happiness, but it is easy to do harm to citizen’s right because it has grasped social resources and various kind of compulsive means. It is a hot question that can’t be avoided in the course of china’s modernization that the urban house is pulled down by force. A lot of examples taking place during pulling down reflect the current situation of China’s right protection which is exciting and sad, and reflect a great deal of expectation of government’s construction by the vast citizens, and cause people to exercise the deep thinking of the relation between citizen’s right protection and government’s power, and easily make people strengthen identifying with general plan of running a country according to the law, impel people to think that they should make a bit for the construction of Chinese law. In view of these, under the guidance of my tutor Dr. Chen Hongjiang, I have explored this question utilizing the typical case of the urban house while pulled down by force. The full text, besides the introduction and conclusion, was divided into four parts altogether. The second, third and fourth part among them are focal points of the thesis. In the introduction, I have explained and defined the concepts (such as pulling down by force, running by law,etc) that the thesis involves using the linguistic context, and has shown innovations and methods of this thesis. The first part: Discuss from the quickening of China’s urbanization, this paragraph points out that the urbanization is a developing trend of China’s economy and society. The update and modernization of urban function is also a must for city development, which need pulling down some cities’ house. Thus the question of citizen’s right protection while pulling down is put forward. The second part: Explaining the exemple, we probe into public interests and citizen’s right protection when pulled down by force. This part writes out three case of urban house pulled down by force in Jiahe of Hunan province at first. Then we use the theory of public interests to explain that some pulling down by force is false “names of public benefit”, some pulling down by force is for the sake of public interests in deed, but the realization of public interests has deviated from the proper procedure, thus aggrieve citizen’s right. Next, the article explain that the pulling down by force impinges 7 citizen’s rights: life and health right, property right, working and ensuring right, right of being aware, fair trading right, judicatory relief right and the right of participating in great affairs. Finally, the part has carried on the discussion of the signification of the theory of citizen’s right and the protection of citizen’s right: the construction of running by law should regard “right standard ”as the value orientation, and the protection of citizen’s right can ensure the running of healthy socialist market economy, and can settle solid foundation of social stability, and can greatly promote the progress of the political civilization, and can settle solid foundation of the harmonious socialist society, and can offer wide prospect of people’s liberation and overall development. The third part: The threat of running according to the law in modern society is not mainly from citizen individual, but public power and government’s staff. The focal point of running the country according to the law is the governmental power abiding by laws, and the focal point of governing power lies in managing government’s power so as to guarantee to administrate the state according to law. Government’s power is the most active power in the state power, its degree of being active is in direct proportion to thousands of the national affairs, the complexity of the society creates the wide space that government’s power can enforce judging freedom and even can formulate the administrative statute. Government power is apt to expand, for it needs freedom but is easiest to be free immoderately. It is the most difficult power to control although it needs to control at the most. We should put the chains of responsibility into the government and his staff, and offer the effective supervision, thus the power is difficult to be abused. On the basis of further discussing the idea of running according to the law, this part proposes that under the background of running the country according to the law, the government must be juristic government, limited government, responsible government and service government. It has discussed the function that the government can offer in pulling down by force, and then proposes that wanting to strengthen role consciousness of government’s staff in the general plan of running a country according to the law, we must exert from several following respects: (1) Strengthen the education of the correct outlook of power and strengthen the study of laws and regulations; (2) Enlarge the cost of government staff’s illegal deeds; (3) Set up the mechanism of official supervision under the Party’s leadership with the core of justice supervising; (4) Open up new way of surveillance by the messes, including setting up directly elect system when electing a head of a county or a mayor and making use of the supervisory strength of network media. The forth part: Sought the way to resolve the problem of the urban house pulling down. This part has discussed how to settle the concrete problem of the pulling down under the existing system while fully considering 12 respects, such as the weak status of people whose house will be pulled down, and setting up operating market mechanism, etc., and put forward the great proposition that we should acknowledge the right to use the land while pulling down urban house. Next, we have examined the legitimacy of “The administrant byelaw of the urban house while pulling down ”in terms of legitimacy principle and the law, and put forth that in order to protect citizen’s right assuredly when pulling down urban house, we must abolish “The administrant byelaw of the urban house while pulling down”, and legislate for the problem of urban house pulling down again by National People’s Congress. Conclusion: We sum up and summarize main standpoints and measures of resolving the problem in this thesis. We believe firmly that under the leadership of the Communist Party of China, with the value concept of running the country according to the law rooted in the hearts of the people, and with our country protecting human right more and more, following the energetical promotion of the outline of administering the state according to the law, the Chinese citizen’s protection of rights and the construction of the law is a heavy burden,but the dawn appears!更多还原