论法教义学:源流、特征及其功能

On Legal Doctrine:Its Origin,Characteristics and Functions

法教义学乃是一门将现行实在法秩序作为坚定信奉而不加怀疑的前提,并以此为出发点开展体系化与解释工作的规范科学。它研究以规范现象之身份而出现的法,因对现行法秩序的合理性保持确信,故而总是以一国现行实在法秩序为工作的基础及界限,并在此背景下开展体系化与解释的工作。在实践方面,它坚持认知主义的立场,主张现实问题的有解性,以实现更多具体细节上的正义为目标。对我国而言,法教义学在体系化和维护法的安定性、减轻负担与制约恣意、解答具体法律问题和促进法治成熟、沟通理论界和实务界以及构建法律共同体等方面的功能应受重视。

In recent years, the loss of government procurement value caused by high price and corruption has drawn great attention of the theoretical circle in China. Scholars have examined and analyzed the problem from system perspective, which reveals that the very cause of the loss of government procurement value lies in the lack of a special system in terms of the subject of govern- ment procurement, channel of challenge and complaint, and contract mechanism. As a matter of fact, the deficiency of the system is more closely related to the models of legislative thinking, execu- tive - led legislation and institutional arrangement of the authority of government procurement. An in -depth analysis of the causes has also proved to be true. Accordingly, the strategy to tackle these problems at the root should include a change of model of legislative thinking from learning advanced international legal system alone to the integration into the international legal system on the basis of stressing Chinese context, a change of legislative forces - led model from executive - led legislation to legislation following rules of the game, and a change of model of institutional structure of the authori- ty of procurement from focusing on supervision to emphasizing restraints, so to reconstruct the system according to the unified legislative model and following the authority - conditioned line of thinking.