论法权形态异化的本质及其法律矫治

On Nature of Variation Forms of Legal Power and Right and Legal Remedy

应然的法权关系中存在着"权利"与"权力"两种法权形态。权利反映的是平等民事主体之间对称、互惠的权利义务关系;权力来自于法律,是凝结在法律中的人民权利,人民是权力的唯一合法源泉。权力本应从属并服务于权利。法权形态的异化导致权力权利化、权利权力化,形成权力与权利功能的二律背反,不仅损害了社会公共利益,而且侵犯了公民的合法权益。防止权力及权力异化的途径是明确权力和权利的边界,加快民主法治的进程,建立法权关系的制约机制。

This article think there are two forms of legal right in inevitable legal relation, namely, right and power. Right expression is a relation of symmetry, reciprocal right and obligation within equal civil parties. Power comes from law, is coagulated by people＇ s right in the law, people is an only legal resource of power. Power should obey, and serve tight. The variation of forms of legal right and power makes power transform into right,or right changes into power, forming functions of right and power are opposite. Not only having damaged social public interest but also aggrieve citizen＇ legal right. Way of prevent power and right from variation is that dearly enact the boundary of between power and right, to quicken the process of democracy and law system, to set up control system of relation of legal power and right.