软法视野下村规运用实证考察与机理重塑--以构建情理法统一为中心视角展开

Empirical Study and Mechanism Reconstruction of Village Regulation from the Perspective of Soft Law——From the Perspective of Constructing the Unity of Reason and Law

村规蕴含的公序良俗,不仅是《民法通则》的基本原则,也是"民间法"软治理的规范之一。村规在乡土社会发挥着重要的治理功能。然而现实却存在着大量异化的村规,其根源在于村规的制定缺失民意基础、制定程序随意。在我国法治建设进程中,制定法应理性引导村规条约制定、审查与备案,预留村规合理的规制空间;反之,村规也应恪守法治思维,体现基层民众真实意愿。为制定法与村规在乡土治理领域寻求一条协同共存之路。

The public order and good custom contained in village regulations are not only the basic principles of The General Principles o f Civil Law, but also one of the norms of the soft governance of folk law. Village regulations play an important role in the governance of rural society. However, there are a lot of alienated village rules in reality, and the root of which lies in the formulation of village regu-lations ,i. e. the lack of basic will of public and the arbitrary establishment of procedures. In the process of building the rule of law in our country, law should be a rational guide for establishing, reviewing and filling the treaties of village regulations and keeps the reason-able space for the regulations. On the contrary, abiding the rule of law thinking, the village regulations should reflect the real will of public and seek a way of coexistence for the statute and the village regulations in the field of local governance.