国家法与村民自治规范的冲突与调适——基于83份援引村民自治规范的裁判文书的实证分析

The Conf lict and Conciliation Between the National Laws and Self-governance Rules of Villagers——An Empirical Study Based on 83 Administrative Litigation Judgments Citing Self-governance Norms of Villagers

通过对中国裁判文书网和"北大法宝"案例库中83份援引村民自治规范的裁判文书的梳理可以发现,村民自治规范在行政诉讼的实践中正发挥着作用,村民、村集体、行政机关与法院均在相当程度上援引这种规范证成理由正当性。村民较倾向利用村民自治规范与国家法的位阶关系,形成"规范性援引路径";而村集体和行政机关则较多地援引村民自治规范相较国家法的"自治属性",排除国家权力的干涉;法院虽多数情况下意在保护村民权益,但也向村集体与行政机关作出较大让步。这种援引背后,是农村社会、基层政权与国家交互作用所导致的正式制度施行机关在乡村治理中偏好适用非正式制度的治理逻辑,它对国家权威、动员能力和社会秩序均会产生负面影响。因此应对其进行法治化调适,将宪法、法律等国家法内涵扩展至原则与精神,在二者关系上则引入"明显违反"标准。

By studying 83 administrative litigation judgments citing self-governance norms of villagers from China Judgments Online and PKU Law Database, it can be found that self-governance norms of villagers are playing important roles in administrative litigation. Villagers, villages, administrative organs and courts cite self-governance norms of villagers to support their arguments respectively. Villagers tend to base their argument on the hierarchy between laws and self-governance norms of villagers. Villages and administrative organs tend to emphasize the nature of self-governance so as to protect villages from being intervened by public power. Although courts tend to protect villagers＇ interests, it has to make concessions to villages and administrative organs. As a consequence,there has already been a logic of governance that derives from the interaction between rural areas, grassroots organizations and the state： administrative organs and courts tend to utilize the informal institution described above.It has a negative impact on the authority of the state, the capacity to mobilize and the social order. In order to adjust the logic, it is important to include the principles of the Constitution and laws. Meanwhile, the standard of ＂obvious violation＂ should be established accordingly when the relation between laws and self-governance norms of villagers is considered.