中国式邻避困局的解决之道:基于法律供给侧视角

The solution to the Chinese deadlock of NIMBY: a perspective on legal supply side

中国式邻避困局的根源在于三个方面:一是功能错位的政企关系,二是权力扭曲的政社关系,三是责任缺失的企社关系。同时,在法律层面,中国城市社区邻避治理存在三大问题:一是缺乏精细化的法律防控体系,二是过度依赖行政治理的力量,三是采取压制型法模式来应对邻避问题。破解上述中国式邻避困局的关键是充分保障公民权利,因此,需要当前社会治理模式的法律转型:从立法至上、行政主导的社会治理转变为多元主义、司法中心的社会治理范式,通过激活权利改变治理结构,构建精细化的法律治理体系,充分回应公民的权利诉求,从而降低邻避冲突的社会-政治风险。

There are three sources for Chinese- style dilemma of NIMBY. Firstly,there is function dislocation in the relationship between government and enterprises; Secondly,there is power distortion in the relationship between government and community; Thirdly,there is a lack of responsibility in the relationship between enterprises and community. At the same time,there are three major legal problems in the governance of urban community in China： one is the deficient of legal system of prevention and control; the second is excessive reliance on the power of administrative management; the third is to adopt the pattern of repressive law to deal with the problem of NIMBY. The key to break the gridlock of Chinese- style NIMBY is to fully protect the rights of citizens. So we need the legal transformation of the current social governance model from the paradigm of legislative supremacy and executive- led to the paradigm of pluralism and judicial- centric. This means to change the governance structure through rights and to build a fine legal system of governance for fully responding the demands of citizens＇ rights,and reducing the social- political risks of NIMBY conflicts.