On the Connotation, Composition and Value of Social Public Power in the Perspective of Law

The Connotation, Composition and Value of Social Public Power Xu Jing* Abstract The social public power is the branch of public power corresponding to the state's public power; its origin in social internal governance is a representation of social autonomy. The separation of government and society and the promotion of social organization are new propositions put forward by the state for public governance. In the new era of the dual division of state and society and the governance of government and society, social public power has been highlighted in politics by a new form of power. stage. The operation of the power and the organization of the organization have very different rules or laws from the state's public power. In the effective interaction between power and rights between the autonomous harmony of autonomy and regulation, social public power and national public power are intertwined. A new chapter in pluralism and co-construction.

First, the issue is met and the fate of them is monitored. . . . Although such a government is willing to benefit the people, it seeks to make itself the sole agent and sole arbitrator of happiness; although it provides people with the necessary safety to foresee and ensure that people have access to life, People's happiness, dealing with people's concerns, guiding people's efforts to stipulate the inheritance of people's property and assigning people's heritage, but this is not to let people not think about it and not to worry about the trivial livelihoods. The real problem is. "1. Tocqueville's passage vividly depicts the real picture of the government's comprehensive intervention in social politics and economic life during the Western Welfare States. It also contains such an anxiety: excessive government intervention will bring crisis to the country. History *Dr. Lecturer, School of Law, Central South University, Postdoctoral Researcher, Management Engineering and Science, Central South University. This article is a general project of the Ministry of Education for Humanities and Social Sciences (13YJC820085), Hunan Provincial Philosophy and Social Science General Project (12YBA320), China Postdoctoral Science Foundation Phased research results of the funded project (2012M521533) and the basic research project of the central university (2102QNZT189).

1 Tocville. Quoted from Friedrich von Hayek's Principles of Free Order, translated by Deng Zhenglai, Sanlian Bookstore, 1997, p. 1.

China's jurisprudence proves that although the welfare state and its system of restraint can largely alleviate the crisis of "market failure" under the conditions of free capitalism, the government also has the possibility of "failure" in the government where its drawbacks exist. The rapid increase in public management costs, the low management efficiency, and the breeding of state power rent-seeking phenomena have made the government “crisis.” The market failure has turned to the government’s “government failure” family depends on society; social organization and The group emerged at this time and played a huge role in filling the public sphere that the "national hand" could not reach or interfere with.

This is a summary of Western experience through socially assisted state governance. If we turn our attention to the country, we can easily find that the reshaping effect of the social structure of reform and opening up in the 1970s and 1980s is very obvious. The functional evacuation of the state is not limited to the economic field. The government does not provide any other areas of society. Or no longer have the ability to provide unified, direct management and services. In this context, many existing or new social organizations have a prominent role. They not only interact internally, but also extend their behavior to the traditional role of state power: the “cradle to grave care” originally provided by the executive. In the present, social organizations play an auxiliary role. Public domain governance has changed from a simple state monopoly to a state-society cooperation. In a certain sense, it can be said that the use of market and social forces to implement public management has become an irreversible development trend. Based on this report of the 18th National Congress of the Communist Party of China, it elaborates on the construction of social organizations and clearly states that "strengthening social construction is an important guarantee for social harmony and stability" guides the healthy and orderly development of social organizations and gives full play to the basic role of the masses in participating in social management. "2 The decision of the Third Plenary Session of the 18th Central Committee of the Communist Party of China was further pointed out, "inspiring the vitality of social organizations. Correctly handle government and social relations, speed up the implementation of political and social separation, Yajin social organizations have clear powers and responsibilities, self-government according to law, and play a role. Public services and solutions that are suitable for social organizations are left to the social organization. "3. Opening up the veil of social organization to assist the state's administrative governance, we can easily find that there is a power phenomenon that is different from the state's public power, but closely related to the state's public power. The social public power is born in social autonomy. Corresponding to the national public power is the expansion of state power to society. For this new type of power phenomenon, the current theoretical research mainly focuses on political science, philosophy, sociology, jurisprudence and other scholars, mostly from the national and social duality. Dividing the perspective of civil society and participation in democracy as an analytical tool to trace the origin of social public power, the context of development, the relationship between public power and state public power, and the unique role of social public power in modern government governance; 4 but in this study China's social public power and social power and state power have not been well-defined. 5 Even in the 2nd report of the 18th National Congress of the Communist Party of China, VII. Strengthening social construction in improving people's livelihood and innovating social management.

3 See the decision of the Third Plenary Session of the 18th CPC Central Committee to “13. Innovative Social Governance System”.

4 See Guo Daohui, “Social Power and Civil Society”, Phoenix Publishing and Media Group, Yilin Press, 2009; Deng Zhenglai, Alexandre Editor, National and Civil Society: A Research Path of Social Theory, Central Compilation Press, 2002; He Zengke, Citizen Society and the Third Sector, Social Science Press, 2000 edition; Kang Xiaoguang, Editor-in-Chief, The Transfer of Power: The Change of China's Power Pattern during the Transition Period, Zhejiang People's Publishing House, 1999 Edition, etc.

5 Whether the term “social public power” is an imported item is worthy of further discussion. At least in the Western database, the author typed the search beach with publicsocialpower to find the corresponding; while in the name of socialpower, most of them elaborated on state power, or power from the society (public and private did not have a boundary). Seeing the empirical study of the role of the president of the Chinese court. Some scholars say that the actual reference of the social power in China is the state power. Of course, some scholars put forward the "three-point method of public power" from the perspective of the subject of public power, that is, the state public power and social public power. And the international public power, but also did not make a special, systematic and detailed theory on the power composition, operational rules and related legal relations of social public power. This paper aims to explore the connotation, components and values ​​of social public power in the legal sense from the perspective of jurisprudence and administrative law.

Second, the legal connotation of social public power, public power, public power (a) power, public power, the more public and private boundaries, so that the types of democracy are more and more the same; 9 in the current law or political science, sociology The type of power in the encyclopedia is different from the angle of observation. From the perspective of power content, Montesquieu divided power into legislative power, judicial power and administrative power in the 18th century, and thus laid the theoretical foundation of the organizational structure of "three powers separation" in modern countries; from the perspective of power source See, Michael Man argues that there are four types of power: ideological power, economic power, military power, and political power. From the perspective of external representation of power, Joseph Nye proposed the distinction between "soft power" and "hard power"; This kind of thing is different. Here, the author does not want to entangle in the number of types of power, but only from the research needs of this paper, based on the field of power existence; divide power into public power and private power: 6 such as Qi Yue’s theory of social power Although the book is directly named after social power, it is actually a study of the issue of state power. He believes that "in class society, social power is a compulsory state power"; (See Qi Yue, "Social Power Theory", Ningxia People's Publishing House, 2000, pp. 17, 19. Another example is Zhang Ming in "Rural Social Power" The actual research in the change of structure and cultural structure (1903-1951) is rural politics, and the social power involved refers to the state power that plays a role in the process of rural change. (See Zhang Ming, “The Rural Social Power Structure and Cultural Structure” Changes, Guangxi People's Publishing House, 2001 edition.

7 According to the author's full test, the use of the term “social public power” in China originated from the field of ethnology research. Researcher Zhou Yong of the Institute of Ethnic Studies of the Chinese Academy of Social Sciences believes that “revenge is a legitimate right in the society of the first people to suffer from others. A self-reliance method usually adopted when infringement is a system that human beings initially tried to protect their own interests and maintain social order in the absence of social public power." Zhou Yong, "The First People's Social Dispute Mediation Act" In addition to state power, public power also includes social public power plus the power of social self-governing organizations to exercise their members and social self-governing organizations authorized by law or the state 8 Max Weber, "The History of Civilization - Weber's Anthology" Huang Xianqi, Zhang Xiaolin, Shanghai Sanlian Bookstore, 1988 edition, page 10.

Soft power is the attraction of cultural attraction, ideology or political value and the ability to shape international rules and determine the political agenda. Hard power is generally the "private" of Chinese legal power. The private power is only a theoretical term. The answer to the concept that actually exists is affirmative.

Historically, whether it is the Xia Shang Zhou of the slave society or the Yuan, Ming and Qing Dynasties of the feudal empire, the history of the dynasty of the Chinese dynasty is actually a centralization of the history of private rights. In essence, the emperor’s personal monopoly Under the circumstances, the land of the land is not the king of the king. The power at this time is private power and royal private power. Although the central or local bureaucrats exercise certain powers, these powers are directly or indirectly derived from the emperor’s one person or one family. They “can be free from the restrictions of ordinary law and can exchange his crimes with his official position, as if he were a private slave. Property goes to redemption."

From the modern society, private power as a de facto dominance mainly exists between parents and children, husband and wife, employers and employees, private companies such as large companies and small companies, and is the power of the private sector. Such powers are generally not questioned by the public and the law because the exercise is limited to a specific scope, does not violate the prohibition of the law, violates the public order, and does not adversely affect or damage the members outside the scope.

Public power corresponding to private power is the cornerstone of public law. In traditional public law theory, people often confuse the three concepts of power, public power and state public power; in fact, public power is only a branch of power. The power that exists in the public domain is the power that the public subject is entrusted by the public. 'Public entrustment' is the justification basis for the exercise of public power, and it is also one of the important attributes that distinguish public power from private power. Since the public sphere has national, social and international boundaries, public power can be divided into national public power and society. Public power and international public power: National public power is the most basic and most important type of public power. It is accompanied by the state and plays a pillar role in the process of building the national organization. It is also a tool for the state to realize its basic functions. The country differs from the important standards of the original Yi people. 1 The difference between the home and the old Yi organization is that it divides its nationals by region... The second difference is the establishment of public power. It is no longer directly in line with the residents who organize themselves as armed forces. This special public power is needed because, since the social division into class, the Book of Songs Xiaoya Beishan.

Qi Tongzu, "Chinese Law and Chinese Society", Zhonghua Book Company, 1981, p. 218.

Some scholars believe that the power form of the power dissimilation or rent-seeking after the power of the private, the 'money-transaction', the 'the smuggling of the public' is also in the category of private power. (See Yu Zhong, "Power in the Perspective of Legal Culture", Shandong People's Publishing House, 2004, p. 46.) However, the author believes that after the alienation of public power, the power of public power is not changed by the illegal or illegal “exclusive” of its exercisers; after alienation or rent-seeking The public power is the public power that is illegally exercised, and it is the public power that should be disciplined by law and pursue legal responsibility. The division of public power and private power is based on its original existence field, and the final result of a specific behavior is promoted. The public interest or the acquisition of private benefits can not change the essence of its power (in fact, many private power entities in modern society have also made many contributions to social welfare. At this time, public welfare is only the incidental effect of the part of the private power, not the whole The purpose or purpose of sexual acts. The responsibility of the public authority after the alienation of power is still the responsibility of public power.

The empirical study of the role of the president of the Chinese court is no longer possible for the automatic armed organization of the residents... This kind of public power exists in every country, not only armed people, but also material attachments, such as Prisons and various compulsory institutions are not available in the former Yi society. "State organs at all levels are the carrier of the state's public power. The state's public power has legislative, administrative, and judicial divisions in the horizontal direction. There are central and local differences in the vertical direction; national public power and other forms of public power. The key difference is that the main body of the family is a monopoly authority with legal violence tools.

Social public power is the form of public power originally formed by the human community. After the emergence of the state's public power, this power has gradually declined, and even was swallowed up by the state's public power in a certain period of time; but history has developed to modern times. With the development of the market economy, the "national-social" integration situation has been broken. The separation of civil society organizations and social diversification from the state has made it difficult for the government's power and ability to meet the material and cultural needs of the people's beneficial growth and the power needs of participating in the political management of the country. The government is overburdened and forced to The public power of some countries has once again “highlighted” on the stage of national governance. The emergence of social public power is “a partial symbol of the disintegration of the national mythology means that the power from the masses will be returned to the masses... and also represents the civil society’s leadership over the past. The political power of development and the reorientation of economic power estimate that the “social public power is” a collective force outside the country. Although this force is subject to the influence of the state, it can play its regulatory role more diversely. "Because the following is a detailed analysis of the constituent elements of the power source power of the power subject, it will not be repeated here.

International public power is an extension of the state's public power in the international arena. In the 1980s and 1990s, with the enhancement of the trend of economic globalization and the breakthrough development and dissemination of science and technology, the interdependence between countries has been strengthened. This has not only greatly expanded the space of the international community, but also the entire human race. The common destiny is closely linked; the national public power within a country has been unable to take all public affairs powers on its own and thus further extend to the international community, as the former UN Secretary-General Kofi Annan said, “National sovereignty is from its most fundamental significance. It is said that the order of the emergence of public power and public power in the country is theoretically controversial. This is essentially the first state, or the first society. Before the emergence of state power, the rule of the leader of the Yi nationality is not the basis of power. In the previous analysis of the nature of power, the author believes that the rule of the leader in the Yi society is power, and the category of social public power belonging to the primitive society originates from the rights of the members of the Yi people and is exercised for the common interests of the Yi people. The exercise of procedures and rules. The state's public power is the public power of the Yi society can not solve its own crisis In order to make these opposites, these conflicting classes of economic interests do not destroy themselves and society in the struggle. There is a need for a force that is above the society. This force should ease the conflict. JB conflicts remain within the scope of 'order'. This power that arises from society but is self-reliant and separated from society is the state. "(Preface, Marx, Engels, p. 166.

Xin Zhu, "Welcome to the Advent of the Age of Social Power", Xu Zhengguang, Zhang Xiaochun, Xiao Xinhuang, "Self-relief ‧ Taiwan Social Criticism", Kaohsiung Dunri Press, 1987, pp. 3-5.

10 Emil Durkheim's "Suicide Theory" Feng Yunwen translation, Shangluo Press, 1996 edition, p. 230.

The influence of globalization and internationalization of Chinese jurisprudence has been redefined. ... Our concept of national sovereignty is no longer the same as in the past. “The establishment of international organizations through consultations between countries (such as the International Red Cross, the World Conservation Fund, the World Health Against Nuclear War, Greenpeace, Doctors Without Borders, World Women’s Congress, Amnesty International, etc.) Certain powers, coordinate international disputes, strengthen international cooperation, and solve global or regional problems that cannot be solved by the power of a country. International public power, as the connection point between the contradictions of modern countries that are independent and interdependent, is the initiative of the state. The characterization of the necessary restrictions on one's own power, the voluntary recognition of the existence of international public power is to ensure that all sovereign states live in harmony within the entire global village, which is increasingly dependent on each other, to maintain a peaceful and stable international order.

(II) Social Extension of Social Public Power Public Power At the moment when public administration reform is steadily advancing, administrative territory is gradually expanding, and administrative law paradigm is quietly changing, the public power of the conference has entered a theoretical field as a new type of power and has formed many studies. Results; but it is not difficult to find out behind the "academic prosperity" of scholars. The scholars pay more attention to the case and micro phenomenon of social public power, that is, the operation or rules of the specific organizational form of public power in public administration. However, the lack of nuanced examination of the overall concept of social public power scholars at most refers to the social public power when it comes to the dual division of state-society, civil society or public power.

However, it is undeniable that some scholars believe that the concept of "social public power" approximates that "social power is the social entity's dominance of society with its own social resources. Social resources include material resources (people, money, things, Capital, information, science and technology, cultural industries, etc. and spiritual resources (human rights and legal rights, moral customs, social public opinion, ideology, popular opinion, public opinion, etc.) also include various social groups (nations, classes, strata, various interest groups). Etc.), social organizations (political parties, people's organizations, various community organizations, enterprises and institutions, various industry associations and other non-governmental organizations), social special forces (religions, clan, gangs, etc.). "As Dr. Zhong Ruiyou thinks," Social power is the power that relies on social organizations (such as non-profit organizations) and social public affairs. It includes autonomy, confrontational power and participation, and cooperative power. Among them, the power authorized by law and the power authorized by law are social power. The main composition of the author. Here I try to understand the "power" and "public power" and supplement it with etymology. The interpretation of the concept of "social" in sociology makes a brief analysis of social public power as follows: In China, the earliest appearance of "social" in ancient books is that the word "she" refers to the earth god of a certain residential area. The altar or portrait of God and the sacrifices. The Book of Rites "Cloud" is a memorial to the earth and the main silverware is also ... Society, so the Shinto Way 10 "The Challenges of Global Security", in "News" December 28, 1999 .

Formerly cited 4 Guo Daohui book page 54.

Zhong Ruiyou, “The Expansion of Social Power in Transitional Period and the Public Regulations”, Peking University, Ph.D., 2006, pp. 42 and 9.

Li Bo's "The Origin and Function of Marxist Terminology in Chinese", Zhao Qian, Wang Cao, Ge Pingzhu Translated by the Chinese Social Science Press, 2003, the 108th Chinese Court President's role in the empirical study also "because the earth god altar in ancient times China is the center of every residential area. Therefore, the extension of the term “social” extends to a township that worships the same god. “Society” and “hui” are the earliest words in the Six Dynasties. "Complementary confession," "Wang Shuzhi, seven years old, mourning mother and mother to the community to die in the neighborhood, repairing the social uncle, feeling the death of the mother, mourning, and the neighbors for the death. "At this time, the 'society' already has the meaning of 'assembly'. In the Song Dynasty, it has the connotation of 'association', 'organization', and 'secular group'. "Cheng Wei teaches the people of Jincheng... The villagers have been persuading and shameful for the society to identify good and evil. The term "social" in the modern sense is the society in which the scholars from the West are also called "society groups." Studying the science of the theory of the people, it is also called sociology.

According to this, it is not difficult to see that the word "social" has been a group of a certain number of people since ancient times in China, that is, "group", "association" and "organization". But this is only the concept of "society" in the broad sense. In this paper, the "social" of social public power only takes its narrow sense, that is, the "social" corresponding to the "state". In Western political science or legal works, it is generally translated as "civilsociety". "There are some scholars who have pointed out that "society" - the word was originally used to describe the order of a spontaneously generated human relationship in order to distinguish it from a specially designed state organization when we talk about social power 'or 'social structure' For example, language and customs, or those rights that are gradually recognized as opposed to deliberately granted rights, we still use the term in its original meaning. The purpose is to show that these things are not the product of a personal will. It is the result of countless personal and accidental behaviors from generation to generation. That is to say, society is not the product of rational and logical reasoning. It is not the result of intentional design of human beings for a certain purpose, but rather the establishment and acceptance of the state. "Organization" is distinguished from "the power that is completely unaffected by human desires" and "structure."

Social public power is the organizational power that is formed by a certain number of people and whose members finally transfer their rights according to a specific purpose.

2. Social public power: The power society that serves the interests of society is not only the collection of people but also the aggregation of resources. It is the relative possession of various material resources of the organization except the state monopoly, and it forms with the state by virtue of this possession. Forces counterbalance; a series of conceptual, organizational and material conditions have led to the overall assembly of various non-state forces in society. At the same time, the extensive and effective assembly of such resources lays the foundation for the dominance and management of the members of the organization and objectively forms the so-called "ruling" and "governance". If such governance and governance serve the "private benefits" of the organization Then, its subject identity is "private" and its power is also "private power"; as long as it does not violate the law, the exercise of private power is a legitimate, free home that allows or even encourages private entities to use private power for legitimate interests. This kind of "ruling" and "governance" is for a certain group or * "Book of the Suburbs".

* Xu Jialu, editor of "Twenty-four History Translation: Song History No. 15", Chinese Dictionary Dictionary, 2004, p. 9276.

Wang Rongbao and Ye Wei compiled "Xin Er Ya" Shanghai Mingquan Society 1903 edition, p. 63.

Friedrich von Hayek, Hayek's Selected Works, Feng Keli, translated by Jiangsu People's Publishing House, 2007, p. 253.

Friedrich von Hayek's "Economy, Science and Politics - The Essence of Hayek's Thoughts" translated by Feng Keli, translated by the People's Publishing House of Jiangsu People's Publishing House in 2000, is the social interest service in the field of Chinese law. The public's power is of course in the category of public power.

The social interest is that the public interest within the social group corresponds to the national interest and is the subordinate concept of the public interest. The public interest is not the same as the common and common interests of all the people. According to the size of its existence, it can be divided into two kinds of national interests and social interests. The former is the satisfaction of a country's political rule and focuses on the political interests of the country. It mainly refers to the interests of the ruling class; the latter mainly pursues economic interests and cultural interests for the purpose of safeguarding social autonomy, and does not exclude the state's willing interference. In the case of a high degree of integration between society and the state, social interests and national interests overlap. In the case of a relatively separate society and state, interests and national interests represent different areas of interest, but they are all subordinate to the public interest. Specifically, the social interests that serve the purpose of the exercise of social public power organizations mainly include: (1) peace and security of public order; (2) health, safety and efficiency of economic order; (3) rationality of social resources and opportunities (4) the interests of the weak in society (such as consumer interests in the market competitive society, the interests of laborers, etc.); (5) the maintenance of public morality; (6) the conditions for the development of human civilization (such as public education, Of course, social public power may take the initiative to pay attention to and influence other interests (such as national interests and the personal interests of other citizens) in order to achieve the social interests of the group in the course of operation. The manifestation of the "public character" of power; and the development of social economy also requires these organizations to go beyond the limitations of the group's vision to pay more attention to the general interests of society while striving for their own interests.

3. Social public power: the power to provide "quasi-public products" is the natural provider of public goods, but the transfer of state power to society caused by "government failure" transfers the right to supply some public goods and the society. It is necessary in any social and social community because people need public bodies to provide public goods. But the public body is not equal to the government. The government is not the only public body. Public goods 'can be provided by the government, but also by other public bodies - Provided by social self-governing organizations." Public goods have the distinction of “pure public goods” (pure public goods) and “quasi-publicgoods”; social public power provides not “pure public goods” but “quasi-public products”.

The marginal cost of the membership has been extended to all members of society, such as defense, legislation, basic scientific research, etc.; and "quasi-public products" are non-competitive (also known as "club products") or Although it is competitive in consumption but cannot effectively exclude products (also known as "common resources and thin responsibilities", "National Strategy Theory" is quoted from Liu Cui, Tao Pan, "Public Interests", "Initial Theory", Chinese Law Society, Administrative Law Research conference 2004 conference paper.

* Jiang Ming'an, editor of Administrative Law and Administrative Litigation Law, Peking University Press, Higher Education Press, 2011, p. 12.

* In the view of P Samuelson, the founder of modern welfare economics public goods theory, public goods have two basic characteristics: nonexcludability and nonrivalrous consumption; the former means that it is impossible to prevent non-payment. People who pay for public goods without paying any fees for public goods can enjoy the benefits of public goods as well as those who pay the fees; the latter means that a person’s consumption of public goods does not affect the role of the Chinese court president. When the empirical research group expands to a certain number, the marginal cost starts to rise and continues to expand to a certain amount. The marginal cost will become very large or even infinite, such as roads, parks, libraries, schools, buses, public cinemas, etc. "Pure public goods" can only be provided by the state and "quasi-public products" can be provided by social assistance. The provision of "quasi-public products" is the exercise of the power of public power, and it is also the important value of the existence of public power.

4. Social public power: a preliminary summary of a phenomenon. In the previous section, the analysts of the type of "public power" and "social," social welfare, and "public goods" considered that public power is a social organization outside the country. The product "supply" is the influence and power exerted on the members of the organization for the purpose of the realization of the social interests.

Of course, this conclusion of J is not a precise definition of social public power, but a preliminary summary of the phenomenon of public power.

In fact, the same as power, social public power is also a theoretical category of "what is different"; not to mention that the conclusion of any concept can not achieve absolute delay. The phenomenon outside the concept is often not foreseen or covered by the researcher at the conclusion of the concept. of. Therefore, some characteristics of social public power are explained in terms of constituent elements and values ​​as follows to reveal the legal core contained in the power as comprehensively as possible.

III. Investigation on the multi-dimensionality of the constituent elements of social public power (1) The exercise of social public power The main body of the exercise of public power is the social organization outside the state. Non-state is the primary feature of public power and social public power. It is different from the fundamental difference in the nature of the state's public power. With the development of public administration in modern society, more and more public management functions are transferred from the government to non-governmental organizations. “The state directly uses administrative power to achieve administrative goals” becomes “1. Multi-subject participation in rational allocation between the state and society. The scope of public affairs to maximize the public interest to exercise the state's public power is to grasp the state's legislative power, administrative power and the organization of the formation of human association in pure sociology. There are two ways of expressing "social organization" and "community". The term "social organization" and "social organization" is not equal to "community". In 1887, the German sociologist Ferdinandennis first proposed the concept of "community". In the classic work "Community and Society", it pointed out that the community has three basic forms: the blood community, the geography community and the spiritual community, which are respectively relatives. , the neighborhood and the friendship are the bonds; and the community is formed naturally, and the society is unnatural or man-made; the community is a small-scale internalally connected group, and the society is a loosely-connected aggregate of internal relations; The community is ancient and traditional, while society is new and modern. (See Ferdinandennis, "Community and Society - The Basic Concept of Pure Sociology", Lin Rongyuan, Translator's Library, 1999, pp. 54, 65-66.) After Tennessee, Weber's "Community - Society" Further elaboration pointed out that “if the basis of social behavior orientation is the feeling that the participants feel subjectively belong to a whole, then the social relationship should be called 'community'. If the basis of social behavior orientation is rational drive The relationship of interest at this time should be called 'social'. (Max Weber, "The Basic Concepts of Sociology," translated by Hu Jingbei, Shanghai People's Publishing House, 2000, pp. 62-63.) Social public power organizations are the aggregation of members' interests, and they are based on careful consideration of members. The product of rationality and combination is obviously different from the organization characterized by relatives, neighbors, and friendship. Therefore, the author believes that the concept of "social organization" is more appropriate.

* Jiang Ming'an, editor of the Administrative Law and Administrative Litigation Law, Peking University Press, Higher Education Press, 1999, p. 2.

The state organs of the legal rights of Chinese law, the exercise of social public power are social organizations other than the above three types of state organs.

Specifically, the differences between the public power and the state's public power at the main level are mainly reflected in the following aspects: (1) Organizational self-management. The main body of public public power has organizational autonomy and self-management within the society. It is generally not directly regulated by the government, but it needs to be regulated by the government when necessary. (2) Members are not official. The members of the public power main body are not part of the national civil servant series and are not subject to the Regulation of the Civil Service Law (at most, refer to the 'Management of the Civil Service Law'), nor do they fulfill the duties and obligations of the national public officials set by other laws, regulations and rules. (3) Funding self-raising. The operating funds of the public power main body generally do not come from the government's financial withdrawal* and are solved by the entity through social fundraising, government funding, and collection of membership fees. (4) Scope of professionalism. The field of public power subject usually has certain professionalism, that is to say, it has unique knowledge or industry advantage at certain levels relative to the state organs, with special human, material, financial, intellectual and other conditions for people in society or specific fields. Provide services and rely on this professional advantage to gain popular support and trust.

But it is worth noting that social public power has the same characteristics as the national public power, that is, non-profit. Non-profit is the basic feature of the social public power organization in the purpose of exercising power. This feature is the commonality of public power. Although the social public power organization only exists in a certain region and represents the common interests of the members of the region without the national public power, the "national will" is self-raised in terms of funding sources, but it does not mean that its power is exercised. It may be for the group to seek personal gains. It must provide public welfare services for the society to solve major or important social problems that the state's public powers neglect or can't take care of. It is not allowed to engage in profit-making production operations, and cannot allocate surplus income. Transform into private property in any form.

行使公权力的社会组织在外部表现形式上具有多元性对于此类主体学界有人将之统称为“非政府组织、”非营利组织、“准政府组织”、“第三部门”、“中介组织”、时它才是社会公权力主体。根据法律规定与实践中国的社会公权力组织主要有以下几种基本类型：（1）社会团体：1998年国务院颁布的《社会团体登记管理条例》第2规定“本条例所称社会团体，是指中国公民自愿组成，为实现会员共同意愿，按照其章程开展活动的非非营利性社会组织。”民政部在《关于〈社会团体登记管理条例有关问题〉的通知》（民政*《公劳员法》第106条规定“法律、法规授权的具有公共事劳管理职能的事业单位中除工勤人员以外的工作人员经批准参照本法进行管理。”

此处用的是“一般不来自于政府财政拨款”是因为社会公权力组织中有部分组织是国家出资举办的加事业单位，但事业单位也有全额拨款、差额拨款和自收自支三种类型；而行使国家公权力的机关则全部由国家财政拨款。

在笔者看来这些称谓表达的都是在国家与社会二元化后，行使公共权力的组织由国家拓展到其他非国家领域的组织状况；各称谓在内涵上有时芫全一致有时又略有区别，这主要取决于具体语境，并无本质差异，只是各自侧重点不同而已。

中国法院院长角色的实证研究部民社发〔1989〕9号文）中把社会团体主要分为学术性团体、行业性团体、专业性团体与联合性团体四类。中国文学艺术界联合会、中国科学技术协会、中国作家协会、中国法学会、中国红十字总会等是中国社会团体的典型代表。

（2）基金会：2004年国务院颁布的〈基金会管理条例》第2条规定“本条例所称基金会是指利用自然人、法人或者其他组织捐赠的财产以从事公益事业为目的按照本条例的规定成立的非营利性法人。'中国已建立的基金会主要有中国老年基金会、中国残疾人福利基金会、中国人口福利基金会、中国青少年发展基金会等。基金会的宗旨是通过无偿资助，促进社会的科学、文化教育事业和社会福利救助等公益性事业的发展。

（3）民办非企业单位：1998年国务院颁布的《民办非企业单位登记管理暂行条例》第2条规定“民办非企业单位是指企业事业单位、社会团体和其他社会力量以及公民个人利用非国有资产举办的i从事非营利性社会服务活动的社会组织。'非营利性是民办非企业单位区别于一般企业的基本特征。营利是一切企业的出发点，而民办非企业单位则不同其宗旨是向社会提供公益服务通过自身服务活动促进社会进步与发展，其目的不是为了营利。非营利性是民办非企业单位的最大特征；也正因为如此届家才会在税收等方面对民办非企业单位实行一些特殊的减免政策。此类单位散布于社会的每个角落，如各种民办的教育、卫生、文化、科技、体育、新闻出版、交通、信息、咨询、知识产权、法律保护、环境保护、社会福利事业等。

（4）社会中介组织：此处的社会中介组织专指狭义的社会中介组织即存在于国家、市场和公民之间的，为其活动提供信息、技术、沟通等服务功能和少量监督职能的组织。

中介性使得社会公权力组织能够有效发挥其与政府之间的沟通作用成为个人与国家的桥梁实现国家公权和社会公权的良性互动与互补共济。诚如托尼马歇尔（TonyMarshall）所言：对于第三域组织来说，“共同点在于它们都作为个人与国家之间的中介者活动既得以维持社会的团结又可以使社会变迁顺利进行”。*社会中介组织主要有鉴证、公证和法律服务机构、准司法类中介机构、评估中介机构、代理经纪中介机构、交易中介机构、咨询中介机构等。

（5）事业单位：1998年国务院颁布的《事业单位登记管理暂行条例》第2条规定：办的从事教育、科技、文化、卫生等活动的社会服务组织“事业单位是典型的国家机关之外、由国家利用公权力设立的公益组织具有特定的行政目的提供专门服务。因其社会团体、基金会、民办非企业单位是国家民政部民间组织管理局主要管理的三类社会组织类型。

⑩李亚平、于海编《第三域的兴起――西方志愿工作及志愿工作组织理论文选》旦大学出版社1998年版，第75页。

参见苏力等《规制与发展――第三部门的法律环境》，浙江人民出版社1999年版第96中国法学举办者的国家性事业单位不同于社会团体；因其资金初始来源的国有性，事业单位又不同于民办非企业组织*我国事业单位数量庞大、种类繁多，如北京大学、上海市第一人民医院、国务院法制办公室政府法制研究中心等都属于事业单位的范畴。

（6）基层群众性自治组织：基层群众性自治组织在我国主要指在城市和农村广泛存在的居民委员会和村民委员会〈宪法》第111条规定“城市和农村按居民居住地区设立的居民委员会或者村民委员会是基层群众性自治组织。……居民委员会、村民委员会设人民调解、治安保卫公共卫生等委员会办理本居住地区的公共事务和公益事业，调解民间纠纷，协助维护社会治安，并且向人民政府反映群众的意见、要求和提出建议。”基层群众自治组织是我国基层民主政治的载体其既不是一级国家机关，也不是国家机关的派出机构而是一定范围内的民众通过自我管理、自我教育、自我服务以及民主迭举、民主决策、民主管理、民主监督等方式实现群体自治。

（7）政党：政党政治乃现代民主政治的特色政治，一国通过政党行使国家政权可谓握着一国最多的政治资源和最强大的精神感召力量能以严密的组织纪律和革命策略在最大范围内调动民众积极性并最终将自己的政党意志上升为国家意志实现自己的政治目的在某种层面上也可以说政党是社会公权力组织中的最优势主体。《中国共产党章程》宣称：中国共产党“是中国特色社会主义事业的领导核心，代表中国先进生产力的发展要求，代表中国先进文化的前进方向，代表中国最广大人民的根本利益。”作为执政党与领导党的中国共产党，从一定角度而言，它既享有国家公权力，也享有社会公权力前者主要通过党员当迭人大代表或出任政府官员行使后者则主要通过执政党对党内事务的决策、管理、监督等形式实现。

（8）政协：中国共产党领导的多党合作与政治协商制度是我国筅法所确定的一项基本政治制度。政协是中国政治体制的重要组成部分。根据《中国人民政治协商会议章程》规定“中国人民政治协商会议是中国人民爰国统一战线的组织，是中国共产党领导的多党合作和政治协商的重要机构，是我国政治生活中发扬社会主义民主的重要形式。'中国各民主党派、无党派人士是中国共产党人的亲密战友，”政治协商、民主监督、参政议政“既是政协的基本职能，也是政协行使该组织所拥有的社会公权力的基本方式。政协权力不是形式上的”橡皮图章'不是简单的“路见不平一声吼”，而是事实上的、行之有效的公共权力；这种权力不来自法律的明确授予或其他国家机关的委托不事业单位的菅运资金主要来自各级政府（包括事业单位的主管部门）的拨款和自身的菅运收入（分为全额拨款、差额拨款和自收自支）。

在所涉领域上，民办非企业单位几乎与事业单位相重合，只有个别涉及国家垄断资源的领域没有向民办非企业单位开放。

参见前引④郭道晖书第86-90页。

中国法院院长角色的实证研究是国家公权力的“影子'，而是对国家公权力的运行行使民主监督权。

对国家而言公共权力必须来自法律的明文规定，遵循“权力法定”原则；而社会公权力则不同其主体不属于国家机构之组成部分不受国家机关组织法的规范与调整，它是非国家的社会组织。'一个社会团体的存在和权力是来自某个公共权威的授权呢，还是来自创建人的意志抑或是来自它作为一种联合体所固有的性质……“对此理论界主要有三种不同观点：该说认为社会公权力主体所享有的公共权力并不是其自身取得的而是来自国家授予国家是社会公权力主体权力资源的提供者，只要是公权力就必须以法律的授权为前提”在立法的支持下社会团体的监督和控制功能扩大了，它有能力获得信息有能力满足成员的要求，也有能力对违规者实施处罚。“公权法定是公权力行使的基本规则，”对公权力凡法无明文规定（授权）的不得行之。“该说认为社会公权力产生于社会组织内部，是一种基于契约而形成的权力其来源于成员的一致同意，而不是组织外部其他主体的赋予，它们”从来不在法律范围之内，它们在法律之外产生出来……它们行使的这种权力属于它们自己的创造不是由最高权威授权而来的，从不存在任何控制和恢复问题它们对成员的管理裁判权是绝对的不凭借任何特许或授权的理由，但是要凭借社团全体人员的结合力量和超越于个人之上的强制力量。“目前国内为数不少的学者对此种观点持肯定态度。以社会团体中的行业协会为例有学者认为，行业组织的权力来源有法律授权、政府委托和通过内部成员的一致同意三方面。也有学者指出行业协会的自治权有三方面来源：一是因契约产生的自治权；二是因法律直接授权而产生的自治权；三是因行政授权而产生的自治权。

此处笔者贽同“契约说”并认为契约是一切公权力来源的根本依据。恰如卢梭在〈牡会契约论》中所言“自然状态中不利于人类与人类生存的障碍超出了人类个人所拥有的力量时人类就必须要寻找出一种结合的形式使它能以全部的力量来维护和保哈罗德J伯尔曼《法律与革命――西方法律传统的形成》贺卫方等译，中国大百科全书出版社1993年版，第261页。

张静《法团主义》，中国社会科学出版社1998年版，第124页。

刘作翔《迈向民主与法治的国度》，山东人民出版社1999年版第175页。

马士《中国行会考》，载彭泽益主编《中国工商行会史料集》（上），中华书局1995年版第70-71页。

⑩参见黎军《行业组织的行政法问题研究》，北京大学出版社2002年版第146 *参见鲁篱《行业协会经济自治权研究》，法律出版社2003年版第144页。

中国法学障每个结合者的人身和财富，并且仍然像以前一样的自由。“这种”结合的形式“就是契约”所有进步社会的运动到此处为止，是一个从身份到契约的运动。契约是权力获具合法性、正当性的基本依据。社会公权力是社会组织内部成员合意之产物是一定范围内的人们为生产和获取某种“准公共物品'而自愿进行的组合。”主体之所以接受并遵守一种人们相互之间的结构框架源因在于它相信这是实现其目的的手段当这些人一该组织的成员一一为了共同的目的组合在一起时，他们即让渡了自己的某些权利和自由并使相应组织形成且同时具有了一定的公权力“正如自然赋予了每个人以支配自己各部分肢体的绝对权力一样社会公约也赋予了政治体以支配它的各个成员的绝对权力”在此公权力范围内组织领导人和负责人可对组织成员发号施令，甚至施以奖励或处罚；没有这种内部的公权力相应组织体就不可能有效存在；即便存在也不可能为其成员生产或提供任何“准公共产品'从而失去其存在的意义。

相应地，如果社会公权力组织是通过委托或法律授权的方式获得权力，那幺，此时社会公权力组织不过是国家意志的代表或受委托者其所行使的权力不会因主体移转而发生性质变更；*且值得注意的是因授权或委托而取得的权力其权限随时可能因授权者或委托者的意志变更而改变，甚至消失；而经内部成员契约产生的权力则具有相对稳定性，非经全体成员共同同意并修改组织章程、规约叔力范围一般不会发生波动或变化。

国家与社会的二元划分以及社会组织曰新月异的发展使得社会公权力组织有了与国家公权力组织相类似的组织构成体系社会组织在一定程度上可以说是微缩型的“小政府”，它们同样在实践中制定管理规则、行使内部管理权限、解决内部矛盾纠纷。此处笔者将之概括为“准立法权”、“准行政权、”准司法权'主要是为了突出社会公权力组织作为国家治理补充的“小政府'地位和作用。但值得注意的是，并非每一个社会公权力组织均同时拥有以上三类权力某些组织因其结构简单而只拥有其中一项或两项权力。

为了对内部成员进行行之有效管理社会公权力组织一般在成立之初便依据成员卢梭《社会契约论》，何兆武译，商劳印书馆2003年版第23页。

梅因《古代法》，沈景一译商劳印书馆1959年版第96 *昂格尔《现代社会的法律》吴玉章、周汉华译中国政法大学出版社1994年版第137页。

前引51，卢梭书第41页。

*如前所述，在本文中笔者将“社会公权力组织”与“社会公权力主体”区别对待，并认为只有社会公权力组织行使其内部成员通过契约协定方式授予的权力时才是社会公权力主体；当其以“法律、法规、规章授权的组织”之身份出现并行使相应权力时就仅是“纯机构”意义上的社会公权力组织。

有资料显示，在我国1989年1992年治理整顿期间政府便收回了部分曾经委托给行业协会行使的权力。（参见纪中国法院院长角色的实证研究共同意志制定组织规则；组织规则是成员契约协定之产物，是社会公权力组织权力行使的内部抽象依据。这些规则在名称上有规章、章程、行规、条例等之别，在内容上则大致可分为如下四类：（1）基本组织规范：基本组织规范是社会公权力组织内部的“小筅法”，它主要涉及组织设置目的、组织构成成员资格、入会（党团）手续、成员权利与义务议事规则等。

如《吉林大学章程》对学校功能和教育形式组织与结构激职员工、学生及校友，经费、资产、后勤校徽、校旗、校歌、校庆曰、纪念曰等均有专章阐述。

（2）行为规范：行为规范是社会公权力组织对其成员行为和内部管理提出的各项具体要求；既有道德层面的，也有法律层面的；既有行为标准，也有组织纪律。如中国互联网协会的《博客服务自律公约》第12条规定“博客服务提供者应制定有效的实名博客用户信息安全管理制度，保护博客用户资料。未经实名博客用户本人允许不得公开或向第三方提供用户注册信息及其存储在网站上的非公开博客内容法律、法规另有规定的除外。”

（3）惩罚规范：惩罚规范是社会公权力组织对成员违反组织规则是否予以处罚和应当如何处罚的规定。如中华全国律师协会的《律师协会会员违规行为处分规则（试行）》第2条规定“律师协会对律师和律师事务所违规行为实施行业处分，适用本规则。”

（4）争端解决规范：此类规范或散见于前述三项规范中或由组织单独制定。如《中国足球协会仲裁委员会工作规则规定》第2条规定“中国足球协会仲裁委员会是中国足球协会处理行业内部纠纷的仲裁机构。

以上规则、规章一般均需呈报政府相关部门备案；备案是国家公权力监督社会公权力的一种方式，是国家公权力对社会组织自治规则的认可其目的也就在于保障社会公权力在国家法制框架内运行。

内部管理权是规则制定权在权力运行层面的具体化与细致化。在广义上，内部管理权与自治权等同因为自治即内部的自我管理；在狭义上，内部管理权主要指对内部成员的曰常组织管理权和处罚权：（1）曰常组织管理权：社会公权力组织有权对组织成员进行曰常行为管理。如《中国注册会计师协会关于清理整顿注册会计师行业的通知》（会协字（1997）183号）规定，本次清理整顿工作主要涉及注册会计师队伍、事务所是否符合办所条件、执业质量、职业道德、事务所财务收支管理和会计帐目、境外会计公司常驻代表处和涉外事务所财务税收检查及其设立、执业是否符合规定等内容。

（2）奖励惩罚权：社会公权力组织有权对本组织内部的优秀人物、行为、事迹予以表彰奖励与此同时也有权在实施组织管理过程中对发现的违法、违规行为予以处罚。如中国法学励；对严重违反公约规定的企业视情况采取批评教育、警告、行业内通报、向政府主管部门通报、公开曝光等惩处措施直至取消会员资格。“纠纷裁决权是社会公权力组织解决社会纠纷、维护社会公益的重要体现。纠纷裁决权是社会公权力组织解决内部成员之间或成员与组织之间纠纷的必然性权力，这既是社会自治的表现又是缓解国家司法、行政压力的需求；且内部纠纷内部解决，还能有效突出社会公权力组织的专业优势对于某些专业性问题社会公权力组织具有优先判断权；国家立法也通常以组织体内部的权利救济或权力矫治程序作为行政诉讼的先行步骤即成员必须穷尽一切内部救济手段后方可提起行政诉讼有学者甚至认为，”自治组织拥有解决内部自治法律关系纠纷的排他性权力，即内部自治法律关系争议一般由自治组织系统内部解决而不诉诸国家司法机关。“就实践而言社会公权力组织内部裁决权实现主要有仲裁、调解两种方式：（1）仲裁：所谓仲裁是指纠纷当事人在自愿基础上达成协议；将纠纷提交非司法机构的第三者审理，由第三者作出对争议各方均有约束力的裁决的一种纠纷解决制度。

财产权益纠纷可以仲裁。“诸多社会公权力组织均在其内部规范中载明，如有纠纷可以申请仲裁；仲裁机构或由省、市一般仲裁委员会充当，或由本行业内部的专门仲裁委员会充当。

（2）调解：此处的调解特指人民调解（而非法院调解或仲裁调解）￡卩由设置在基层群众性自治组织或企事业单位中的人民调解委员会进行的调解《人民调解法》第2条规定“本法所称人民调解是指人民调解委员会通过说服、疏导等方法，促使当事人在平等协商基础上自愿达成调解协议，解决民间纠纷的活动。”第7、条规定“人民调解委员会是依法设立的调解民间纠纷的群众性组织。”“村民委员会、居民委员会设立人民调解委员会。企业事业单位根据需要设立人民调解委员会。”

双方当事人经仲裁与调解达成的协议具有法律效力无正当理由不得违反或解除。

（四）社会公权力的运行规则要素社会公权力因组织体成员契约协议而产生是国家之外的社会自治权，该权力相对于国家而言是一种权利届家不得非法干预社会公权力组织在法定自治权范围内的活动。如前所述社会公权力组织可以自行制定章程或规则规定组织内部管理AD村规民约、行规行约、校纪校规、政党章程等。对于这类自治规则的性质是否属于“法”范畴，在*王圣诵国自治法研究》，中国法制出版社2003年版第19页。

不少机构或组织也规定加有纠纷可以首先向本单位申请复议，但此处主要讲的是“准司法性质”的裁判；而复议更多地有内部“准行政”色彩，是“准行政管理权”的行使，而非居间裁决。

中国法院院长角色的实证研究学界有不同认识有学者将其界定为“民间法”，卩在社会中衍生的，为社会所接受的规则；也有学者将社会自治规则定位为“社会法”。此处笔者认为社会公权力组织所制定的自治规则更接近于公法契约其在制定主体、规范对象、追求目标和实施保障等方面均与法律有很大差异不属于传统法的范畴。

社会公权力组织制定的自治性规则仅对内产生约束力不得对组织外部的成员或个人作出科予义务或赋予责任的规定。正如马克思韦伯所说“协会应该称之为一种达成一致的团体，它的按照规章规定的制度，只能要求对根据个人加入的参加者适用”。社会公权力组织是成员为了某一共同利益实现而组建的组织社会公权力自治规范是成员合意达成的规范，是自愿的权利让渡与聚合，当然也就不可避免地会“自愿”

承担某些义务或责任这是利益交换的结果；但其他组织或个人如果既不是成员，也不自愿认可自治规则幺就不受该社会公权力组织体的自治规则约束。

社会公权力主体的自治不是“绝对”的自治而是在一定规制前提下实现的“有限”

自治。这种规制主要表现在：任何公权力都必须在筅法、法律规定的轨道上行使，依法治理是现代权力运行的基本准则。不论是国家公权力还是社会公权力都必须严格遵守一国法律体系所确定的基本制度与原则而不得与法律、法规之规定相抵触，即凡是法律、法规有明确规定的，自治规则均不得与之悖反；凡是法律、法规无明文规定的，自治组织在不违反法律精神及社会公序良俗的情况下可自行制定相关组织规则。此即“不抵触原则”。

除此之外，自治规则制定还需遵守“禁止原则”，卩对以下事项不得干涉：第一筅法保留事项。主要为表达自由、宗教信仰自由、社会经济权利、人身权利以及筅法规定和保障的其他事项。第二法律保留事取〈立法法》第8条明确列举了九类事项只能由全国人大及其常委会通过法律形式予以规定其他主体不得干涉。第三，法规、规章保留事项。某些事项虽不是法律保留的立法范畴，但法律直接授权有关组织以法规、规章形式制定实施细则幺也就只能由法规、规章规定。

（2）内部限制：自治范围和自治规则的限制社会公权力主体在行使社会公权力时不得超越依据自治规则从组织成员处