社会自治规则探讨——兼论社会自治规则与国家法律的关系

社会自治规则是社会自治组织行使社会公权力,规定自治事项,规范成员行为的重要载体和集中体现,并直接决定了社会自治秩序的建构。其可分为授权性规则和自主性规则,其中前者是法律的延伸,具有法的属性;而后者更接近公法契约,不属于法的范畴。其调整范围主要是专业类、行业类和利益类事项,不能涉及法律保留事项。就效力而言,自主性规则具有契约性和自律性,但不具有法律的强制力,只有在法院确认其合法有效后,才能强制执行。社会自治规则与国家法律之间既有互动的一面,也有监督保障的一面,只有二者有机结合,才能有效建构理性的国家和社会秩序。

Discussion on the Rules of Self- government of Society

The rules of self-government of society are important means that embody self-government organizations of society exerting social power, stipulating the matters of self-government and regulating members' behaviors. The rules of self-government of society direct the construction of the order of self-government of society. They can be divided into the authorization rules and the autonomous rules. The authorization rules are the prolongation of law, therefore bearing the nature of law, while the autonomous rules resembling public law contracts, are accordingly excluded from law. The rules of self-government of society contain rules of three kinds of affairs: professional affairs, guild affairs and interest affairs and should not cover the important matters reserved by law. As to the effectiveness, the autonomous rules have the nature of contract and self-discipline, which don't bear the enforcement power of law. Therefore, only after the rules alleged legitimate by courts can they be enforced. At the point of the relation between the rules of self-government of society and the laws of state, it has both the side of interplay, and the side of supervising and guarantee. Only through the combination of both, can we construct the rational order of state and society.