论社团罚

On the Associations' Punishments

我国在社会转型的特定背景下 ,产生了与西方社团性质不同的各种社团 ,由此提出了一个重要的法律问题———社团罚。面对社团罚给公民、法人权益造成的损害 ,我国法学理论没有及时对其进行准确的定性 ,法律实践也缺乏迅速有效的制度救济。国内外学界的契约说、社会权利让渡说、社团固有权利说、国家授权说等各种观点 ,均无法正确阐释我国社团罚权力的本质。我国社团罚权力的本质是公私权力的混合 ,社团罚中存在着变相行政处罚、设定和实施民主性不足、法律救济缺失等问题 ,应当从立法、行政、司法等各个方面 ,科学构建对我国社团罚进行法律控制的平衡机制。

Under the special background of our country's social transformation, there appears various associations different from western counterpart in their nature, thus it brings us the important legal problem of the associations' punishments. Actually, the punishments by the associations have already made harm to the right of natural persons as well as legal persons, but our legal theory did not notice the fact timely, thus unable to determine the nature exactly to adjust it effectively. Nor could any of the foreign theories, which define it as contract, or the inherent right of the association, or the authorization from the state, explain the nature of our country's associations properly. The paper opines the nature of the power to make punishment by the association is the combination of public power and private power. In this field, there exist the problems of administrative punishment in disguised form, lack of the democracy both in establishment and execution, lack of legal remedy, etc. We should establish an equilibrious legal control system to the associations' punishments, from various aspects of legislation, administration and judicature.