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 Wysłany: Nie 21:20, 12 Gru 2010 Temat postu: christian louboutin pas cher Reform Model and Chin |
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Reform Model and China, \
<div style=\Legislative and legal control of legal theory in recent years has been a hot topic with practitioners, academics have had several copies of the drafting of the draft legislation for the state legislature for reference. \In view of the whole legal system, legislation law's basic role and significant impact, it is necessary modernization and social development of China's legal system the height of being considered the \the future development of ideas and practice. This paper from China Union [link widoczny dla zalogowanych] collected.
one,
global historical fact that the process of modernization, modernization can be divided into two implementation ways: one is through the traditional factors of social modernization within the self, one is in the external achieved through change under the pressure of modernization. Explained by the theory of institutional change, the former is induced institutional change, in response to profit opportunities and the spontaneous formation of social order and achieving social change, can be called \to achieve social change, can be called \In Western Europe, after the Roman Empire, the relative diversity of the power structure and social structure of European society does not have a mandatory system of objective historical conditions change,[link widoczny dla zalogowanych], the market economy and the corresponding system of trading rules and property rights are the natural order in the long formed. Before the advent of the European nation-states, courts, maritime law, property law, insurance law, contract law and other basic systems and regulations have been formed after the formation of nation states, but is already the law in the form of the formation of the system and be recognized and standardized norms only 2. can be seen in the spontaneous mode, the specification, the formation of the system and the state legislative activity is not necessarily a conscious relationship.
depends on the successful realization of the spontaneous patterns within society between tradition and modernity compatible relationship, if compatible relationship is weak, the inability to generate from within the society to promote the modernization of the institutional arrangements. Thus, while Asian countries and European countries as a long history, but the centralized nature of economic and political impact of a number of reasons, Asian countries and failed before colonization generated from within the society to promote the modernization of the institutional factors. Even in Western European countries, it is not every country can be generated from within the community continue to promote the modernization of the factors 3.
However, history shows that the spontaneous mode is not the only way to modernization, political reform model can also be achieved modernization of our country. In the West, the later development of relatively developed countries have no intention to repeat the earlier developed from scratch spontaneous process, but directly by the introduction of mandatory Institutional Change and efficient system of economic organization and transactions 4. U.S. law on UK law The well received by the French Civil Code and other countries on the impact of the European continent, can fully explain the effectiveness of Reform Model 5. In fact, most contemporary Western countries, more or less directly from the private law or borrowed from the Roman or British common law 6. Pound therefore suggests that \in the \State intervention in social life to the extent and scope of the spontaneous pattern of institutional change have become increasingly rare, increasingly constrained space activities 9.
and Historical Development of Western countries is different from most developing countries experienced the tragic history of colonial and semi, and their modernization process is often accompanied by the process of national independence, at the same time began. Politically, in order to safeguard national unity and independence, and avoid becoming a vassal of the developed countries or into civil strife and ethnic conflicts continue to maintain a strong state power, especially the authority of the central government has decisive importance. Economically, in order to rapidly improve people's living standards,[link widoczny dla zalogowanych], strengthen the country's economic strength, to participate in international competition, developing countries had to take a government driven by rapid economic development strategies to achieve economic take-off. Modernization theory and practice show that the developing countries to achieve modernization, developed countries need a greater degree than earlier government intervention and control 10. And, according to the principles of institutional economics, spontaneous institutional change in the expected return must be larger than expected Cost circumstances will occur. Developing countries in the highly centralized planned economy and a strong government under the authority of the Government is both the holders of political power is the dominant economy, the owner of state assets and the socio-economic activities of the program organizers, so developing countries spontaneous abnormal high cost of institutional innovation, which makes the Government to promote political reform under the more important. Except by the Government to introduce laws, policies, establish and protect a system compatible with the market, forced to promote institutional change, the market can not spontaneously formed 11. In this way, legislative and political reform was inextricably linked with the Legislative Reform model constitutes the basic form of expression.
the two different trajectories of social development, political reform model to model and spontaneous in character with the obvious difference:
First, the relationship between the market order and rules, the spontaneous mode is In the market order during the formation of spontaneous intersubjectivity in the market trading rules, and then by the state in legal form, the rules of spontaneously recognized. The so-called \rules to guide, facilitate the formation of the market order. Reform model is the first rule of law, after the market order, rule of law paving the way for the formation of a market economy.
Second, the relationship between central and local, spontaneous mode is essentially a personal act or local acts. Even if the existence of a unified state power, nor will the central government or local characteristics of individual behavior intervention. Therefore, in the spontaneous mode, the particularity of each place and the corresponding public goods (such as the dispute settlement mechanism, trade practices, etc.) can be diversified development. Constitutional Reform mode, the central government in order to maintain the regulatory capacity of the political reform process and implement the principle of fairness, to promote political reform of the power is mainly concentrated in the central government. And, in order to break the division of local forces and the obstruction of political reform, a more moderate centralization become indispensable 13.
Third, the basic institutional arrangement and the second level the relationship between institutional arrangements 14 , political reform because it is from one system to another system, the conversion system and the concept necessarily involves a fundamental change. Does not change the basic institutional arrangements,[link widoczny dla zalogowanych], the whole reform process will be because of the lack of objective evaluation criteria to be trapped in endless debate. In spontaneous mode, the second-level institutional arrangements formed in the transaction agreement between the parties, therefore,[link widoczny dla zalogowanych], fundamental changes in institutional arrangements before the likely occurrence of the second stage of institutional change, and gradually lead to the basic system arrangement more fundamental changes. Advantages and disadvantages of two different pathways, fundamental changes can bring about change in the short term goal, but the realization of high cost, easy to social life and sudden changes and shocks. Progressive change requires a longer time, but its implementation cost is low, the transition smooth.
Fourth, the legal system in the market order and the formation time, the political reform model sought in a relatively short time into the legal system, and the Reform ways in a short time to promote the formation of the market order. In contrast,[link widoczny dla zalogowanych], the formation of spontaneous market order model with the legal system often after a long period of history has any final formulation of a law, are self-selected long-term results of the market 15.
Fifth, Stability and change in the law of mutual relations, because the law is self-mode market, the result of choice after a long period, so that once the law, firmly rooted in the vitality of the market order itself, unless the large social structure changes in the law can maintain its stability and predictability. In contrast, under the laws of political reform model is an artificial creation and a tool to promote social change, with the development of social life are subject to change laws, political reform strategy should be the proper meaning of questions. And, because every change in the law is to bring the law to more effectively promote the formation of market order, this variability does not undermine the reasonable expectations of law 16.
Sixth, local law technology and international relations, the rules of the formation of spontaneous mode is entirely spontaneous market order selection results. In the Reform approach, the Government often draw on the successful experience of developed countries, and its successful introduction of legal concepts and systems, or transplanted to the country. From the formal point of view, developing countries to adopt political reform model seems to lack support for localization. However, from the real
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