论法案起草方式
发布时间：2019-01-14 16:07
【摘要】：处在社会转型期的中国,法律越来越彰显其重要作用,如何制定出高质量的法律是社会公众广泛关注的问题。由于我国立法体制尚有不完备之处,导致正式的立法程序存在着一定的缺陷。真正决定一部法律品质的关键在于法案的起草环节。我国现行主要的法案起草方式----部门起草法案方式弊端越来越明显,法案的委托起草和招标起草等新的起草方式不断走进公众的视野,成为人们热议的话题,但是时至今日委托起草和招标起草法案方式还没有制度化。委托起草和招标起草法案方式能否解决我国现行法案起草方式的弊端?中国的法案起草又将走向何处?本文选择以法案起草方式为研究主题,以期能为我国法案起草方式的完善尽绵薄之力。 本文首先从法的合法性理论入手,来阐述民主立法的重要性,对于我国来说,提高法案起草过程中的民主参与显得尤为重要。为借鉴国外的法案起草经验,本文介绍了美国的专门机构起草法案模式的优势,而后分别分析了我国目前存在的五种法案起草方式：部门起草、人大起草、委托起草、招标起草和合作起草。部门起草法案作为我国目前主要的法案起草方式,尤其优势也有明显的弊端,即带有浓厚的部门保护主义色彩,备受公众诟病,本文通过对立法腐败第一案郭京毅案的深入分析,系统揭露了部门起草法案方式的弊端。为提高立法的质量,人大作为立法机关应加强对法案起草过程的干预,其参与不应仅仅限制在审议、表决阶段,更应加强对起草法案过程的干预和指导。由于人大起草自身能力存在的局限性,使其无法独立承担起草工作。为了改变这一现状,各地不断探索法案起草的新思路和新方法,委托起草、招标起草和合作起草法案方式兴起。论文通过对三个代表性例子的分析,结合实际得出,在现阶段,新兴的法案起草方式并不能取代部门起草法案方式。在文章最后笔者阐述了自己的思考,认为建立专门的法案起草机构进行起草是我国法案起草的最终归宿,但是由于现阶段我国的国情所致,还不具备建立专门的法案起草机构的条件。作为过渡,可以着重发展委托起草、招标起草和合作起草,以培养建立专门法案起草机构的土壤。法案起草过程中克服部门保护主义症结的关键是加强人大对法案起草的参与,提高起草过程中的公众参与度,畅通利益表达渠道,让各种利益都能够充分实现博弈,以提高立法质量。
[Abstract]:Law is playing an increasingly important role in China during the period of social transition. How to make high quality laws is a problem that the public pays more attention to. Due to the imperfection of our legislative system, there are some defects in the formal legislative procedure. The key to determining the quality of a law lies in the drafting of the bill. In our country, the main current drafting method of bill-the drawback of drafting bill by department is becoming more and more obvious. New drafting methods, such as commissioned drafting of bill and draft by tender, are constantly coming into the public's view and become a hot topic for people to discuss. But so far, commissioned drafting and tender drafting of bills has not been institutionalized. Can the drafting method of commission and tender solve the drawback of the drafting method of current bill in our country? Where will China's bill be drafted? This paper chooses the drafting method of the bill as the research topic, hoping to contribute to the perfection of the drafting method of the bill in our country. This paper begins with the legitimacy theory of law to expound the importance of democratic legislation. For our country, it is very important to improve the democratic participation in the drafting process of bill. In order to draw lessons from the experience of foreign countries, this paper introduces the advantages of the mode of drafting the bill by the specialized agencies in the United States, and then analyzes the five existing drafting methods of the bill in our country: departmental drafting, NPC drafting, commissioned drafting, and so on. Tender drafting and cooperative drafting. As the main method of drafting bills in our country at present, departmental drafting has obvious disadvantages, that is, with a strong sense of departmental protectionism, it has been criticized by the public. Based on the in-depth analysis of Guo Jingyi, the first case of legislative corruption, this paper systematically exposes the malpractice of drafting the bill by the department. In order to improve the quality of legislation, the NPC, as a legislature, should strengthen its intervention in the drafting process of bills, and its participation should not only be limited to the stage of deliberation and voting, but also strengthen its intervention and guidance in the process of drafting bills. Because of the limitation of the people's Congress's drafting ability, it can not undertake the drafting work independently. In order to change this situation, new ideas and methods of drafting bills are constantly being explored, and the methods of commissioned drafting, bidding drafting and cooperative drafting are emerging. Through the analysis of three representative examples, combining with the practice, it is concluded that at this stage, the new drafting method can not replace the departmental drafting method. At the end of the article, the author expounds his own thinking, and thinks that the establishment of a special drafting body for the drafting of the bill is the final destination of the drafting of the bill in our country, but due to the current situation of our country, There are no conditions for a special drafting body. As a transition, emphasis can be placed on the development of commissioned drafting, tender drafting and cooperative drafting to foster the soil for the establishment of specialized bill drafting bodies. The key to overcoming the crux of departmental protectionism in the drafting process of the bill is to strengthen the participation of the people's Congress in the drafting of the bill, to increase public participation in the drafting process, to open up channels for the expression of interests, and to enable all kinds of interests to fully realize the game. To improve the quality of legislation.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.0
本文编号：2408863
[Abstract]:Law is playing an increasingly important role in China during the period of social transition. How to make high quality laws is a problem that the public pays more attention to. Due to the imperfection of our legislative system, there are some defects in the formal legislative procedure. The key to determining the quality of a law lies in the drafting of the bill. In our country, the main current drafting method of bill-the drawback of drafting bill by department is becoming more and more obvious. New drafting methods, such as commissioned drafting of bill and draft by tender, are constantly coming into the public's view and become a hot topic for people to discuss. But so far, commissioned drafting and tender drafting of bills has not been institutionalized. Can the drafting method of commission and tender solve the drawback of the drafting method of current bill in our country? Where will China's bill be drafted? This paper chooses the drafting method of the bill as the research topic, hoping to contribute to the perfection of the drafting method of the bill in our country. This paper begins with the legitimacy theory of law to expound the importance of democratic legislation. For our country, it is very important to improve the democratic participation in the drafting process of bill. In order to draw lessons from the experience of foreign countries, this paper introduces the advantages of the mode of drafting the bill by the specialized agencies in the United States, and then analyzes the five existing drafting methods of the bill in our country: departmental drafting, NPC drafting, commissioned drafting, and so on. Tender drafting and cooperative drafting. As the main method of drafting bills in our country at present, departmental drafting has obvious disadvantages, that is, with a strong sense of departmental protectionism, it has been criticized by the public. Based on the in-depth analysis of Guo Jingyi, the first case of legislative corruption, this paper systematically exposes the malpractice of drafting the bill by the department. In order to improve the quality of legislation, the NPC, as a legislature, should strengthen its intervention in the drafting process of bills, and its participation should not only be limited to the stage of deliberation and voting, but also strengthen its intervention and guidance in the process of drafting bills. Because of the limitation of the people's Congress's drafting ability, it can not undertake the drafting work independently. In order to change this situation, new ideas and methods of drafting bills are constantly being explored, and the methods of commissioned drafting, bidding drafting and cooperative drafting are emerging. Through the analysis of three representative examples, combining with the practice, it is concluded that at this stage, the new drafting method can not replace the departmental drafting method. At the end of the article, the author expounds his own thinking, and thinks that the establishment of a special drafting body for the drafting of the bill is the final destination of the drafting of the bill in our country, but due to the current situation of our country, There are no conditions for a special drafting body. As a transition, emphasis can be placed on the development of commissioned drafting, tender drafting and cooperative drafting to foster the soil for the establishment of specialized bill drafting bodies. The key to overcoming the crux of departmental protectionism in the drafting process of the bill is to strengthen the participation of the people's Congress in the drafting of the bill, to increase public participation in the drafting process, to open up channels for the expression of interests, and to enable all kinds of interests to fully realize the game. To improve the quality of legislation.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.0
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