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中国在立法价值的选择上体现出强烈的实证主义倾向。这种立法上的价值取向自觉或不自觉地把法律作为维护秩序的手段而非自由与权利的保障。其形成既有历史根源也有现实原因。面对新的形势,我们需要法的精神上的转换,“以人为本”应成为法的根本精神追求与价值取向。坚持“以人为本”应坚持以人的自由为本、以人权为本,并且立法要坚持私法自治理念。
China shows a strong tendency of positivism on the choice of legislative value. This kind of legislative value orientation conscientiously or unconsciously regards the law as a means of maintaining order rather than a guarantee of freedom and rights. Its formation has both historical roots and realistic reasons. In the face of the new situation, we need the spiritual transformation of the law, and “people-oriented” should become the fundamental spiritual pursuit and value orientation of the law. Adhere to the “people-oriented” should adhere to the people’s freedom-based, human rights-based, and legislation should adhere to the concept of self-government of private law.