摘要
我国宪法规定了作为公有制形式之一的国家所有制,却并没有确立其具体的法律实现机制。为满足发展市场经济的现实需要,物权法以国家所有权概念为基础初步建立了国家所有制的物权实现机制。然而,参照私有制-私人所有权模式而从国家所有制导出国家所有权的法学原理并未真正形成。建立在国家所有权概念基础上的物权实现机制,既表现出与国家所有制的疏离,又受宪法国家所有制规范的牵引而犹豫踟蹰,难以全面满足市场经济的实际需要。物权实现机制的尴尬处境,直接或间接地反映了两组要素之间的张力:旨在消灭剥削的社会主义理论-公有制-宪法规范-国家所有制-历史;重在发展生产力的社会主义理论-市场经济-物权法规范-国家所有权-现实和未来。这些张力所固有及由其所引发的制度矛盾和社会问题,需要通过全面深化改革和全面推进依法治国予以解决,当然也需要学术研究提供相关智识支持。
The state ownership system, as one form of public ownership system, is stipulated by China＇ s constitution, while there is no legal enforcement mechanism specifically stipulated in it. To meet need of market economy in practice, Property Law establishes the preliminary enforcement mechanism of the state ownership system in accordance with the concept of state ownership. However, legal principles to derive state ownership from state ownership system has not really come into being yet, which is quite different from that private ownership is derived from private ownership system. On＇ the one hand, established on the concept of state ownership, property enforcement system shows its alienation from state ownership system. On the other hand, it shall obey the regulations related to state ownership system stipulated by the constitution. In consequence, it can not actually meet the demand of market economy in all directions. Such situation of the property enforcement system reflects the following contradiction directly or indirectly： based on the state ownership system, socialist theory aiming at eliminating exploitation, is stipulated by the constitution, which is determined by China＇ s history ; however, on the basis of the market economy, socialist theory focusing on productivity, complies with the Property Law, which conforms to both the present and future development. The system differences and social issues induced by such contradiction shall be resolved by comprehensively deepening reform and fully advancing the law-based governance, and it surely requires the intellectual supports from relevant academic researches.
出处
《中国法学》
CSSCI
北大核心
2016年第2期86-104,共19页
China Legal Science
