改革時代的轉型法治與政治代表

改革開放以來的法治型態可被概括為轉型法治，即在社會主義初級階段的改革中逐步實現法治。從思想史中可以歸納出三種轉型範式，識別出有別於例外狀態和規範狀態的改革狀態。在改革狀態中，法治不再是某種理想類型，而是一種正在進行中的轉型法治。在轉型法治的憲制結構中，引領型的政治代表具有特別重要的地位。它在代議政府體系之上，發揮著引領、認知和勇於擔當的重要作用。這構成了轉型法治的基本特徵，即政黨與國家立法機關的二元代表制。政黨既領導國家立法，又要受到國家法律的約束，與此同時，政黨還必須通過黨規黨紀來實現自我約束。

The legal development in the era of reform and opening-up can be defined as the rule of law for transition. It means that the rule of law can be gradually realized on the base of the theory of the primary stage of socialism, which is also expressed as a state of continuous transformation and upgrading. There are three transition paradigms in the history of modern thought, in which the reforming state is identified from the exceptional state and the normative state. In the state of reform, the rule of law is no longer an ideal type, but the rule of law for transition, in which the leading political representation are necessary and outside the government system and plays an important role in leading, cognizing and bravely reforming. It constitutes the basic characteristics of the rule of law for transition that the political party leads lead parliamentary legislation but are also are subject to the laws of the state. Moreover, political party as the people’s representation must practice self-discipline, achieved only through the formulation of party rules and disciplines.