“自贸区法治”的法理蕴意与规范证成

Rule of Law in Free Trade Zones:Its Jurisprudential Basis and Justification

"自贸区法治"属于一种依托自由贸易试验区的空间区域,以法治试验和创新为主要内容的地方法治建设模式,具有空间维度上的人为性、时间维度上的时效性、内容维度上的试验性和结构维度上的国家战略性等一系列内在特征。不同于"全面否定论"和"部分否定论","自贸区法治"概念的规范证成需要立足于宪法文本,"两个积极性"下的"地方治权自主"是自贸区法治得以独立存在的可能规范来源。"自贸区法治"的未来发展受制于自贸区法治试验成果的质量问题和自贸区试验成果复制推广机制的法治化问题,需要构建起关于自贸区试验改革的全国统一统筹监管机制,并促成复制推广机制的行政法治化转型。

The rule of law in free trade zones is a unique model of local rule of law which is based on the space of pilot free trade zones and characterized by various legal experiments and innovations.The rule of law in such regions has such features as:it is artificial in the sense that it is confined to a specially-designated region;it is temporary in the sense that it is expedient rather than stable and longlasting;it is experimental in terms of contents;and it is a state strategy in terms of its structural position in the legal system.Different from such views as the total or partial denial of the value of the theory and practice of the rule of law in free trade zones,the jurisprudential justification of the rule of law in this regard should be based on the text of the Constitution:"the local autonomy in governance"specified by the"two initiatives"in the document can be regarded as the source of the independent existence of the type of rule of law currently implemented in free trade zones.The future development of the rule of law in such regions is liable to be influenced by the quality of the experiment of the rule of law in free trade zones and by the rule of law in the mechanism for replicating and disseminating the product of the experiment.Furthermore,it is necessary to build an overall supervision and management system at the national level and promote the transformation of the replicationdissemination mechanism from an administrative-based means into a rule of law-based system.