国家法人说的兴衰及其法学遗产
王天华国家法人说的兴衰及其法学遗产
The Rise and Fall of the State Authority Theory and Its Legacy in Legal Science
期刊名称：《法学研究》
期刊年份：
作者：王天华
单位：中国政法大学
中文关键词：法学国家观;国家法人说;天皇机关说;国家机关;行政主体
英文关键词：state view in legal science;state authority theory;emperor organ theory;government organ;administrative subject
中文摘要：
机关法人、机关犯罪、行政主体乃至行政法人等法律或法学概念，以及一系列以国家机关为原告的名誉侵权案、敲诈勒索政府案司法判决表明，我国公法与公法学体系欠缺清晰的“法学国家观”。在大陆法系国家，建构法学国家观的任务主要是由国家法学特别是19世纪后半期形成于德国的国家法人说完成的。国家法人说在国民主权原理的宪法秩序下受到过批判或否定，但“国家法人”这个以法秩序的统一性为目标的法技术概念及其背后的法学思考方式却保留了下来。梳理国家法人说的兴衰过程、清算国家法人说的法学遗产，有助于厘清我国目前所面对的一系列问题，对建构我国的“法学国家观”具有重要意义。
英文摘要：
From the perspective of law, what does the word"state" mean? Is it a legal person or a personified expression of the legal order? Or,"state" refers to the community surpassing any individual and has the meaning of unification in social existence? Such questions sound abstract but in fact deal with the fundamental relationship between the state and the individuals. They also relate to such legal and technical problems as the legal status of state organs. Those questions, however, were rarely touched upon seriously in the past, leading to a lack of state view in the study of public law. For instance, in some judicial judgments, administrative organs are considered as the subjects of rights or perpetrators of crimes. And when it comes to natural resources, the state owns all, thus discouraging individuals from developing natural resources. Against this background, this paper delves into the State Authority Theory originated in Germany and inherited by Japan. This theory sees the state as a legal person as well as a community surpassing individuals and having a unified will. However, under the constitutional order based on the national sovereignty principle, the state authority theory tells some truth on the one hand but faces serious criticism on the other hand. For today’s China, the state authority theory is of much significance in terms of viewing the state authority instead of government organs as a single legal person. However, when it comes to the question of whether"state authority" is only a personified expression of legal order or it shall be deemed as a substantial existence with"state will" or"state philosophy", further discussion is needed.
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