我国授权行政立法的实证分析

发布时间：2019-01-02 07:25

【摘要】：自1980年以来,授权行政立法在我国得到了迅速的发展,目前已经成为了一种必不可少的立法形式。本文采用了实证分析的研究方法,在第一章中,对授权行政立法在实务中的诸多形态进行了梳理。在我国,作为授权主体进行行政立法授权的机关有：全国人大及其常委会、国务院、国务院部门、省级人大及其常委会、较大的市人大及其常委会。作为被授权主体进行行政立法的机关有：国务院、国务院部门、省级人民政府、省级人民政府部门、较大的市人民政府、地市级以下人民政府以及社会团体等。通过对我国授权行政立法在实践中具体应用的总结和分析,发现授权行政立法制度在实践中暴露的问题较多。总体而言,我国的授权行政立法制度很不完善。从主体方面来看,无论是授权主体还是被授权主体,在《立法法》中都没有得以明确的限定。于是,在实践中,凡是有某种立法权的主体,或多或少,都在进行立法授权。被授权主体遍及中央行政机关和各省级行政机关,甚至立法权被下放到地市级行政机关。授权行政立法呈层层转移的金字塔状,严重分解了全国人大及其常委会的立法权。从内容方面来看,授权内容过于宽泛,导致行政机关成为了主要的立法机关；没有授权期限的限制,使得行政立法不作为现象大量存在；立法机关在授予行政机关立法权时,对权力行使的限制较少,使得授权行政立法如同脱缰的野马,失去了应有控制。从对授权行政立法的监督来看,监督形式单一化,排斥司法机关完整的司法审查。各级人大常委会的立法监督缺乏力度,备案审查制度不健全。而行政机关内部的自我监督又因部门利益冲突而难以发挥应有的监督作用。在各种监督手段中普遍存在公开化、透明化程度不高,公众参与较少的问题。这些因素使得对授权行政立法的监督难以形成合力。本文针对我国授权行政立法实践中存在的问题,提出了一些建议,以期完善授权行政立法制度,加强立法监督。第一,完善《立法法》中对授权行政立法的制度规划。目前我国实践中的授权行政立法都缺乏严格的制度和程序机制,对授权的内容、目的及范围没有相应的确定与限制。行政立法授权机制是判定行政立法责任的基础,因此建立完备的授权行政立法规则是规制授权行政立法的当务之急。第二,加强对授权行政立法的有效监督。充分发挥各级人大常委会的立法监督职能,完善备案和撤销两种监督机制。公开对规范性文件的审查结果,在监督过程中引入公众的立法动议制度。同时利用行政机关的层级关系,加强行政机关内部的自我监督。逐步引入司法审查制度,采取多种渠道的监督形式。第三,坚持形式法治优于实质法治的思维方式。根据我国授权行政立法的现状,现阶段,我国法治建设最为紧迫的任务是确立起形式法治所强调的一套形式性、程序性制度安排,为各种社会问题纳入法治的轨道思考和处理创造制度条件,为法律所追求的那些实体价值目标的实现提供制度保障。本文的立足点是我国的授权行政立法的实践,对授权行政立法制度中存在的问题进行了分析,并提出了相应的解决措施,以期对完善授权行政立法贡献自己绵薄之力。
[Abstract]:Since 1980, the authorized administrative legislation has been developed rapidly in our country, and has become an essential legislative form. This paper adopts the research method of the empirical analysis, in the first chapter, the authorise the administrative legislation in practice in many forms. In our country, the organs of the State Council, the Standing Committee of the State Council, the State Council, the Provincial People's Congress and its Standing Committee, the larger local people's congresses and their ordinary people The organs of the State Council, the State Council, the people's governments at the provincial level, the departments of the people's governments at the provincial level, the people's governments at the municipal level, the people's governments at the local level and the social groups On the basis of the summary and analysis of the practical application of the authorized administrative legislation in China, it is found that the system of authorized administrative legislation is exposed in practice More. In general, the system of authorized administrative legislation in our country is very different Perfect. From the main point of view, neither the authorized subject nor the authorized subject is allowed in the A clear definition. Thus, in practice, there is a body of some kind of legislative power, more or less, in advance Legislative authority of the line. The authorized subject is distributed throughout the central administrative organ and various provincial administrative organs, and even the legislative power is put to the ground. The administrative organ of the stage. authorized the administrative legislation to be in the form of a layer of transfer, which seriously disintegrates the National People's Congress and its Standing Committee. The legislative power of the legislature. In terms of the content, the authorization content is too broad, which causes the administrative organ to become the main legislative organ, without the limitation of the authorization period, so that the administrative legislation does not exist in a large amount; when the legislative power is granted to the administrative organ, the legislative organ shall have the right to the right The restrictions on the exercise of force are small, so that the authorized administrative legislation is like the mustang of the debauchery. Loss of due control. From the supervision of the authorized administrative legislation, the form of supervision is normalized and excluded. A complete judicial review of the judiciary. The legislative oversight of the Standing Committee of the National People's Congress at all levels has a lack of force The system of the filing and examination is not sound, and the self-supervision within the administrative organ is due to the conflict of interest of the department. It is difficult to play the necessary supervisory role. There is a widespread openness in various monitoring instruments, and the degree of transparency is not High, public participation less. These factors make the administration of authority The supervision of the legislation is hard to form a resultant force. In the light of the problems existing in the practice of China's authorized administrative legislation, some suggestions are put forward, with a view to improving the delegation. The system of the administrative legislation of the right to strengthen the supervision of the legislation. In the current practice, the authorized administrative legislation lacks the strict system and procedure mechanism, There is no corresponding determination and limitation of volume, purpose and scope. The mechanism of administrative legislative authority is the basis of determining the responsibility of administrative legislation, so it is necessary to establish a complete authorized administration. Regulation is an urgent task to regulate and authorize the administrative legislation. Second, we should strengthen the effective supervision of the authorized administrative legislation and give full play to the Standing Committee of the National People's Congress at all levels. The functions of the legislative supervision, the improvement of the filing and the withdrawal of the two monitoring mechanisms, and the examination of the normative documents As a result, the public's legislative motion system is introduced into the process of supervision. To strengthen the self-supervision within the administrative organ, and step by step. The introduction of the judicial review system takes the form of a variety of channels. Third, the rule of law in the form of the rule of law is superior to the way of thinking of the essence of the rule of law. According to the present situation of our country's authorized administrative legislation, the most urgent task in the construction of the rule of law in our country is to establish a set of formal and procedural system arrangements as emphasized by the rule of law in the form of the rule of law. The social problems are integrated into the track thinking of the rule of law and the conditions of the processing of the creation system. The article is based on the practice of the authorized administrative legislation of our country, analyses the problems existing in the system of authorized administrative legislation, and puts forward the phase.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.1;D920.0

【参考文献】