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有效化解社会矛盾需要依赖社会规范,但作为现代社会主导规范的法律并不完全具备社会规范的特征,这就决定了法律在化解社会矛盾问题上的局限性。潜规则是指在某一阶层或小团体中通行的,以权力和人情世故为中心,对法律进行便利化操作和私益化运作凝练而成的社会规范。它不同于民间规范,是中国社会建构和理解法律的独特方式,是当代中国真实规范状况的表征。在社会矛盾化解中,潜规则能够维持局部的社会秩序,通过作为立法渊源和填补法律缺漏的竞争性因素而化解法律与社会矛盾;同时,潜规则影响着人们对待社会矛盾的心态,并可以作为社会矛盾化解的介质和渠道,在司法实践中对法律解释产生影响。拒斥多于认同是时下对待潜规则的理性态度,但应大力凸显潜规则在构筑社会治理模式中的可能价值,才能较好地化解社会矛盾,实现国家社会的长治久安。
To effectively resolve social conflicts needs to rely on social norms, but as the dominant norms of modern society, the law does not fully have the characteristics of social norms, which determines the law in resolving the social problems of the limitations. The unspoken rules refer to the social norms that are passed through by a certain class or small group and centered on the world power and human affairs, and are facilitated by the operation of the law and the operation of the private benefit. It is different from folk norms, is a unique way of Chinese society to construct and understand the law, is the characterization of the real norms of contemporary China. In resolving social conflicts, the unspoken rules can maintain the local social order and resolve the conflicts between law and society through the origin of legislation and the competitive factor of filling the legal gaps. At the same time, unspoken rules affect people’s mentality of dealing with social conflicts and can serve as The media and channels for resolving social conflicts have an impact on legal interpretation in judicial practice. Refusal to recognize more than approaching the unspoken rules nowadays is a rational attitude, but should be greatly underlined the potential rules in the construction of social governance model of the possible values in order to better resolve social conflicts and achieve national long-term peace and stability.