文化市场监管模式研究——以德国为考察中心

Modes of Culture Market Regulation: Focusing on Germany

如何利用法治推动文化的繁荣与发展,如何有效监管文化市场,是目前学界关注的重要课题。在文化法治建设中,国家保护文化的自主、开放和多元性,保障公民文化基本权利。国家为文化服务并有义务促进文化的发展,但也通过给付行政的方式来行使国家的文化形成权。德国在文化法治背景下形成了文化市场监管的四种模式:自我规制、受规制的自我规制、共同规制和政府规制。这四种模式各有优劣,且可以相互补充、共同发挥作用,以实现促进文化发展,保障公民文化基本权利的目标。我国在进行文化体制改革和文化法治建设时,可以借鉴与学习德国的经验,合理建构文化与国家的关系、文化与法治的关系、公民文化基本权利与政府责任之间的关系,以给付行政的方式促进文化的发展,并建立以行业的自我规制为主,以受规制的自我规制、共同规制、政府规制为辅的多元监管体系。

How to apply the principle of rule of law to promote the prosperity and development of the culture and how to regulate the culture market effectively, are the important topics in the current academia. In the legal construction process of culture, the autonomy, openness and pluralism of the culture as well as the cultural fundamental rights of citizens are protected. The state services the culture and is also obligated to pi＇omote the development of culture, whereas the state forms the culture through the welfare administration. Under the background of legal construction of culture, Germany has developed four modes for the cultural market regulation： self-regulation, regulatory self-regulation, co-regulation and governmental regulation. These four models have advantages and disadvantages respectively, and they could complement each other and function together in order to achieve the goal of promoting cultural development and protecting the cultural fundamental rights of citizens. While reforming the cultural systems and setting up the rule of law in the cultural areas in China, we can learn from Germany？ s experience. We should establish reasonable relationships between culture and state, culture and the rule of law, the cultural fundamental rights of citizens and the governmental responsibilities. The state should promote the cultural development through the welfare administration and establish a diverse regulatory system for cultural market, which is based mainly on the self-regulation and supplemented by regulatory self-regulation, co-regulation and government regulation.