国务院规章备案问题研究
发布时间：2018-11-01 20:14
【摘要】：吴邦国委员长在2011年3月全国人大常委会工作报告中,郑重宣布,中国特色社会主义法律体系已经形成,党的十五大提出的到2010年形成中国特色社会主义法律体系的立法工作目标如期实现。这是我国民主法制建设进程中的一件大事,在中国立法史上树起了一个重要的里程碑,也标志着我国全面实施依法治国基本方略进入一个新的阶段。但是,在我国当前转型时期,行政机关制定的下位法律规范(主要指本文所研究的规章)与上位法律规范(行政法规或法律)相冲突的情形时有发生;而一旦发生这种情况,司法机关、行政机关及公民个人在这种法律秩序的失序中如何作为就变得尴尬起来。笔者对于此问题的回应在于,一方面,赖于《立法法》对于相冲突法律规范适用的规定;但另一方面,从源头来探究其冲突的成因,对于非因情事变更需要而修改上位法的情形外,以规章备案制度的完备来消除或减少下位法的违法冲突现象是一种必然和有效的选择。这也是我国多年来的法律制度建设对我们法律人的需要。 本文选定的角度是以行政立法监督来解决实际中存在的问题,选取的研究点为规章的备案制度,并将备案机关限定于目前备案制度稍完整的国务院。就一般意义而言,在立法学上,国务院规章备案制度需要从三个方面来探讨。一是何谓规章备案制度;二是目前国务院规章备案制度的完备程度研究,即研究我国的目前制度及其实施情况;三是应当如何完善健全国务院规章备案制度。在本文的研究路径上,首先通过案例来导出所研究的命题。接下来第一章首先在公法或者说行政法的视野中对国务院规章备案制度的概念和功能做了一个整体的分析研究,构建了论题的理论框架,并将此作为基础来进行下文的论述。第二章即关注了目前的我国现状,从实证角度出发较全面地展开研究;第三章借鉴他国经验拓展视角,吸取精华剔除糟粕,以为我所用。在完成上述资料工作的前提下,第四章提出了自己对于该问题的观点,尝试写出自己的创新点,旨在为我国的国务院规章备案制度的发展做出星火贡献。
[Abstract]:In his report on the work of the standing Committee of the National people's Congress in March 2011, Chairman Wu Bangguo solemnly declared that the legal system of socialism with Chinese characteristics has been formed. The legislative target of the 15th National Congress of the Party to form a socialist legal system with Chinese characteristics by 2010 was achieved as scheduled. This is a major event in the process of building democracy and legal system in China. It has set up an important milestone in the history of Chinese legislation, and it also marks a new stage in the overall implementation of the basic strategy of governing the country according to law. However, in the current transition period of our country, conflicts between the lower legal norms (mainly referring to the regulations studied in this paper) and the upper legal norms (administrative regulations or laws) have occurred from time to time. And once this happens, the judiciary, the executive and the individual citizen become embarrassed in the disorder of the legal order. The author's response to this problem is that, on the one hand, it depends on the provisions of the Legislative Law on the application of conflicting legal norms; But on the other hand, to probe into the cause of conflict from the source, except for the situation where the superior law is modified not because of the change of circumstances, It is an inevitable and effective choice to eliminate or reduce the illegal conflict of the inferior law with the completion of the regulation record system. This is also the legal system construction of our country for many years the need of our legal person. The angle chosen in this paper is to solve the problems existing in practice with the supervision of administrative legislation. The research point selected is the filing system of rules and regulations, and the archival organ is limited to the State Council, which has a relatively complete record system at present. In general sense, the regulation filing system of the State Council needs to be discussed from three aspects. First, what is the regulation filing system; second, the study on the completeness of the current regulation filing system of the State Council, that is, to study the current system and its implementation in China; and third, how to perfect and improve the regulation filing system of the State Council. In the research path of this paper, the thesis is first derived by case study. Then the first chapter makes a whole analysis and research on the concept and function of the regulation filing system of the State Council in the perspective of public law or administrative law, and constructs the theoretical framework of the topic, and takes this as the basis to discuss the following. The second chapter focuses on the current situation of our country, from the perspective of empirical research; the third chapter draws on the experience of other countries to expand the perspective, absorb the essence to remove the dross, in order to use for our own use. On the premise of completing the above mentioned data, the fourth chapter puts forward my own viewpoint on this issue, and tries to write out its own innovative points, aiming at making a spark contribution to the development of the regulation record system of the State Council of our country.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.1;D920.0
本文编号：2304976
[Abstract]:In his report on the work of the standing Committee of the National people's Congress in March 2011, Chairman Wu Bangguo solemnly declared that the legal system of socialism with Chinese characteristics has been formed. The legislative target of the 15th National Congress of the Party to form a socialist legal system with Chinese characteristics by 2010 was achieved as scheduled. This is a major event in the process of building democracy and legal system in China. It has set up an important milestone in the history of Chinese legislation, and it also marks a new stage in the overall implementation of the basic strategy of governing the country according to law. However, in the current transition period of our country, conflicts between the lower legal norms (mainly referring to the regulations studied in this paper) and the upper legal norms (administrative regulations or laws) have occurred from time to time. And once this happens, the judiciary, the executive and the individual citizen become embarrassed in the disorder of the legal order. The author's response to this problem is that, on the one hand, it depends on the provisions of the Legislative Law on the application of conflicting legal norms; But on the other hand, to probe into the cause of conflict from the source, except for the situation where the superior law is modified not because of the change of circumstances, It is an inevitable and effective choice to eliminate or reduce the illegal conflict of the inferior law with the completion of the regulation record system. This is also the legal system construction of our country for many years the need of our legal person. The angle chosen in this paper is to solve the problems existing in practice with the supervision of administrative legislation. The research point selected is the filing system of rules and regulations, and the archival organ is limited to the State Council, which has a relatively complete record system at present. In general sense, the regulation filing system of the State Council needs to be discussed from three aspects. First, what is the regulation filing system; second, the study on the completeness of the current regulation filing system of the State Council, that is, to study the current system and its implementation in China; and third, how to perfect and improve the regulation filing system of the State Council. In the research path of this paper, the thesis is first derived by case study. Then the first chapter makes a whole analysis and research on the concept and function of the regulation filing system of the State Council in the perspective of public law or administrative law, and constructs the theoretical framework of the topic, and takes this as the basis to discuss the following. The second chapter focuses on the current situation of our country, from the perspective of empirical research; the third chapter draws on the experience of other countries to expand the perspective, absorb the essence to remove the dross, in order to use for our own use. On the premise of completing the above mentioned data, the fourth chapter puts forward my own viewpoint on this issue, and tries to write out its own innovative points, aiming at making a spark contribution to the development of the regulation record system of the State Council of our country.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.1;D920.0
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相关硕士学位论文 前1条
1 林宏杰;法规规章备案问题初探[D];中国政法大学;2001年
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