【作者】 刘欣；

【导师】 里赞；

【作者基本信息】 四川大学 ， 法律， 2005， 硕士

【摘要】 自新中国成立至今半个世纪以来,国家对待法律的态度经历了从否定到肯定再到高度重视的曲折变化过程,在治国方略上,实现了从全面废弃法制到以依法治国、建立社会主义法治国家为目标的转变。相应的,我国的立法活动经历了跌宕起伏的若干发展阶段,到今天已经取得了显著成果,从这一方面看来,我们似乎离法治目标不远了。 但是,法治的实现并不仅仅是有法可依,作为一个成熟的理论,人们对它的自由、平等、正义、秩序等多元价值早已达成共识。法治的实现,从根本上说,应该是其价值的实现。因此,我国立法是否具有与法治相一致的价值取向成为衡量立法优劣的重要标准,也是衡量我国法治建设实效的重要标准。本文旨在通过对建国以来立法活动出现的若干发展阶段进行实证分析,从事实到价值,发掘我国立法背后的价值取向,并以法治的基本价值作为对比的依据,从而找到立法存在的问题。 要以法治的基本价值作为分析的依据,首先要明确何为法治基本价值。因此,文章的第一部分是对法治理论的简要回顾,对法治概念内含的基本价值包括制约国家权力、保障公民权利、程序正义进行概括性描述,并提出,立法价值取向与上述三方面相一致是实现法治的必要条件。 文章的第二部分是对我国法治历程的简要介绍,包括法治目标在我国的正式提出以及我国通过大量的国家立法以达到有法可依、依法治国,从而实现法治国家目标的发展道路。 第三部分是全文的重点,主要是对我国立法价值取向的实证分析。首先,更多还原

【Abstract】 Since the People’s Republic of China has established for more than 50 years, the nation’s attitude toward law changed from denied to definite, again to greatly regarded. The governing method of the authorities also changed from completely abandoning the legal system to ruling the country legally and building socialism country under the rule of law as the top goal. Correspondingly, the national legislation experienced several fluctuating multi-development phases, and has gained remarkable achievements. At this time, it looks like that we are not far from our target of rule of law.To build a country under the rule of law demands not only having enough laws. As a mature theory, people have arrived agreements on its value such as its freedom, equality, justice, order, etc. The realization of rule of law, fundamentally said, should be the realization of its value. Therefore, whether the liability of value of our legislation is in accordance with that of the rule of law becomes the important criterion to the quality of legislation, and also, it is the important criterion to the actual construction effect of rule by law. This article wants to find out the liability legislation in our country through analysis of legislation, from fact to value, and then we can know the problems in legislation.If the analysis must be based on the basic value of rule of law, we ought to know what its basic value is. So, the first part of this article is a brief review to the government by law theory. The value of rule by law include restricting state power, safeguarding the rights of citizens, justice of procedural rules. If a country under the rule of law wants to be built, the orientation of legislation value should be in accordance with the above three aspects.The second part of this article is a brief introduction to the national road of rule by law, including the rule by law goal in the country officially being proposed and the road of realizing the goal by massive legislation.The third part is the center, mainly about the demonstrative analysis of legislation. The nation’s legislation can be divided into three phases, from 1949 to 1956, from 1957 to 1978, from 1978 to 2004. Next, surrounding the attitude of legislation to the three aspects of the basic value of rule of law, the article analyzes the value liability in legislation. Among them, the first stage is the new initial period, the legislation’s duty is to consolidate state’s power and to establish law system. The second stage belonged to special time in Chinese history, the legislation backed down seriously. The third stage is the core. It is the new beginning and transition of the construction of rule of law in our country. In this stage, legislation began to restore swiftly and socialistic legal system has set up. Along with rule by law goal proposing, the attitude of legislation to the state’s power, the citizen rights and procedural rules has changed, and it gradually put importance to limitation of state’s power, protection of the citizen rights and the attention to procedural rules, is just. This was the tremendous progress which our country legislation obtained.Finally, the fourth part generalizes the general characteristics of legislation liability in our country, and then draws the conclusion: Although our country has established the construction socialism country under the rule of law as top goal, legislation has already made great process, and the whole social life aspects have been regulated by laws, the value orientation of our country legislation has not completely changed in stressing state’s power, despising citizen rights, stressing entity value despising procedural justice. Therefore, there is a gap between the legislation fact in our country and the value of rule of law. Only when the gap is eliminated can we really build a socialism country under rule of law.更多还原