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随着社会主义市场经济的建立和逐步完善,与社会变革相伴相随的中国法制,也正迎接着前所未有的挑战和机遇。构建社会主义法律体系,实施系统工程,进而推动中国走向法治社会,是世纪之交的重任。本文试从法制建设及传统观念向法治观念转换的角度,探索中国的法治发展之路。 一、法制与法治 “法制”与“法治”是法学研究和法律实践中两个十分重要的术语,由于这两个词意义上有相近之处,在汉语中又属异字同音,因此不仅一般人因感到难以区分而时时混淆,即使在法律学者的论著当中,混用的现象也时常出现,甚至还有“法制(法治)”这样的表述。可见,对这两个词加以区分和认识,仍是十分必要的。 现在我国法学界以及社会上,通常在以下三种意义上使用“法制”:一是指法律制度(相当于英语的Legal institution),有学者称之为静态意义上的法制,也就是一个国家法的整体,如“法制完备”、“法制史”;二是指法律体系(相当于英语中的Legal system),有学者称之为动态意义上的法制,即包括立法、司法、执法、守法、法律实施的监督等主要环节的制度体系,如“加强民主,健全法制”;三是指依法办事、依法治国的原则和方针(相当于英语中的rule of law,rule by law),如“增强法制意识”,但在这种含义中,使用“法治”一词会更恰当?
With the establishment and gradual improvement of the socialist market economy, the Chinese legal system that accompanies social changes is also facing unprecedented challenges and opportunities. The task of building a socialist legal system, implementing systematic projects and pushing China toward a society ruled by law is at the turn of the century. This article tries to explore the road to the development of the rule of law in China from the perspective of the legal system construction and the traditional concept to the concept of the rule of law. I. Legal System and the Rule of Law The “legal system” and “rule of law” are two very important terms in legal research and legal practice. Since these two words have similar meanings and are homonyms in Chinese, they are not only ordinary people Confused from time to time because of the difficulty of distinguishing between them, even in the works of legal scholars, the phenomenon of mixing frequently appears, and even the expression of “legal system (the rule of law).” Obviously, it is still very necessary to make a distinction and understanding between these two words. Nowadays, in our jurisprudence and society, “legal system” is usually used in the following three sense: First, the legal system (equivalent to the English legal institution), some scholars call it the legal system in the static sense, that is, a national law The second is the legal system (equivalent to the English legal system). Some scholars call it the legal system in the dynamic sense, which includes the legislation, the judicature, the law enforcement, the law-abiding, the legal system, Such as “strengthening democracy and perfecting the legal system”; third, referring to the principles and guidelines for administering the country according to law and governing the country according to law (equivalent to rule of law, rule by law in English) Legal awareness “, but in this sense, the use of the term” rule of law "would be more appropriate?