儒家“活法”與權力制約新論

Review on Living Law of Confucianism and Power Control

把權力關進制度的籠子裡是權力廉潔、正當運行的重要條件。由於中國社會存在著儒家“活法”，它一般性地參與構造了權力運行的雙重領域與二元秩序，即公共領域與“活法”領域、國法秩序與“活法”秩序。故此，權力的制度籠子必須延及權力運行的儒家“活法”領域與“活法”秩序。學界主流的權力制約理論存在兩大不足：一是與中國的權力架構及運行實際存在差距；二是忽視了儒家文化對權力運行的影響。基於現代法治社會權力行使主體隱私權克減的通行法理，設計出既符合中國權力架構，又能控制權力行使主體的微觀與私域行為，進而反制儒家“活法”對權力廉潔、正當運行的負面影響的制度尤為必要。

Bridling powers in the cage of institution is the essential condition for the uncorrupted operation of powers However, in China exists the living law of Confucianism, which plays a significant role in the construction of double domains and dualist order for the operation of powers, i.e., public domain and living law domain, orders under national law and living law As a result, the institution cage of powers should be extended to the domain and order of the living law There are two disadvantages of Chinas theory in power control: the existing gap between power structure and power operation; too much emphasis of the power control program on its macro control along with the ignorance of the impacts of Confucianism on power operation and that of behavior control of the executive in private and microcosmic domain On the basis of prevailing jurisprudence that the right of privacy of the executive should be restricted, it is of great significance to design an institution that conforms with Chinas power structure and controls the behaviors of the executive in their private and microcosmic domain as well, only in this way can the negative effects of the living law of Confucianism on the order of power operation be avoided.