私人参与警察任务执行的法理基础
章志远私人参与警察任务执行的法理基础
Participation of Private Sector in Police Task: Its Jurisprudential Foundation Construction of the System of Punitive Damages of Insider Trading
期刊名称：《法学研究》
期刊年份：
作者：章志远
单位：苏州大学法学院暨东吴公法与比较法研究所
中文关键词：民营化;治安承包;私人参与行政任务;政府管理改革
英文关键词：privatization;public order contract;participation of private section in police task;reform of governmental administration
中文摘要：
治安承包现象引发的广泛社会争议是我国私人参与警察任务执行改革沉浮的真实写照。对宪法基本政策条款和民主国、法治国及社会国原则的解读显示，私人参与警察任务执行并不违反我国宪法文本规定和宪法基本原理。“国家和社会”条款在行政法律规范中频频出现以及行政法上辅助性原则、行政过程论的阐释表明，私人参与警察任务执行同样具备合法性基础。我国政法工作一以贯之的群众路线和警察任务的时代流变，彰显出私人参与警察任务执行具有深厚的社会历史及现实基础。从改革时机选择、行政法制保障和后续政府规制上看，私人参与警察任务执行在我国依旧是一个极具挑战性的行政法前沿课题。
英文摘要：
The public order contract is a typical mode of the participation of the private sector in the police task in China, which, as an important and controversial topic in the administrative law, has faced many disputes. This paper therefore analyzes its jurisprudential bases from the perspectives of the constitutional law, the administrative law and the society.Firstly, the participation of the private sector in the police task has legitimacy in the constitution. When we interpret the basic policy article of our constitution, we can find that although the constitution hasn’t stimulated such practice, it hasn’t forbid it either. The privatization of the police task can accord with the principles of the democratic, legal and social state so long as the reform can abide by the principle of reservation of law and strengthen the supervision by the government. Secondly, it also has legitimacy in the administrative law. There are many articles concerning to “the state and the society” in our administrative law system. And the privatization of the police task should be valid according to the interpretation of the principle of subsidiary and the theory of administrative process. Lastly, it still has its root in society. As far as the historic tradition of Chinese political and legal work is concerned, following the mass line is our lasting policy. And the problem of lacking of policemen arises along with the rapid development of the society. In order to fulfill the heavy police task, some local governments have to make use of the private section.This paper also points out the legal limits of the participation of the private sector in the police task. Thus we cannot put the reform plan into practice immediately. As far as Chinese administrative law research is concerned, the participation of the private sector in the police task is still an unfulfilled topic.
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