上海自贸区行政创新及法制完善

发布时间：2018-05-24 23:03

本文选题：上海自贸区 + 行政创新　；参考：《哈尔滨工业大学》2017年硕士论文

【摘要】：在中国,自贸区被中国特色化为自由贸易试验区,本文统称为自贸区。作为成立最早,影响力最大的上海自贸区在这三年来积极探索,大胆尝试。但在我们关注其改革创新所取得的重大成果的同时,也应当看到上海自贸区在法制保障体系完善上急需解决的问题,即其并非由全国人大或其常委会通过立法创建,本质上属于行政推动,而非立法推动。这就意味着上海自贸区的法制建设只能从行政法规、行政规章、地方性法规及地方性规章中寻求支持。尽管国务院批准印发的《中国(上海)自由贸易试验区总体方案》类似于国务院授权上海立法,但始终无法消除人们关于其在我国《立法法》中法律位阶问题上的疑问。《总体方案》是商务部、地方政府联合拟定,并经过国务院批准生效的,其法律效力似高于通常意义上的部门规章或地方政府规章,但这仍不能算作真正意义上的国务院行政法规,这使得上海自贸区建设缺乏足够的法律权威性和稳定性。自2014年8月1日起施行的《上海自贸试验区条例》是《立法法》中明确规定的地方性法规,可以在一定程度上填补国家层面立法缺失的空缺。该条例在地方立法的权限范围内有较多的制度创新,而在中央立法权限范围内的事项上创新仍然有限。针对上述问题,作者提出了完善上海自贸区法制保障体系的三个立法措施。第一个是出台实施我国第一部自贸区基本法,从根本上改变我国一直以来崇尚的“先设区后立法”的思想,通过制定基本法来解决上海自贸区法制发展中的关键障碍。第二个是实施自贸区授权立法,其中最为实际的操作办法是参照改革开放后经济特区获得专门授权立法的类似实践,通过全国人大及其常委会以专门决定或决议形式授权自贸区立法。第三个是完善自贸区地方性立法。目前全国人大及其常委会为自贸区暂时调整或暂时停止适用法律规定给予法律支持,但仍需想办法从程序上保障该行为能够有效的启动。
[Abstract]:In China, free trade area is changed into free trade test area with Chinese characteristics. As the earliest and most influential free-trade area in Shanghai in the past three years actively explore, bold attempt. However, while we are concerned about the major achievements made in its reform and innovation, we should also see that the Shanghai Free Trade Zone urgently needs to be solved in improving its legal system, that is, it was not created by legislation by the National people's Congress or its standing Committee. Essentially, it is an administrative push, not a legislative one. This means that the legal construction of Shanghai Free Trade Zone can only be supported by administrative regulations, local regulations and local regulations. Although the General Plan for the China (Shanghai) Free Trade pilot area approved and issued by the State Council is similar to that authorized by the State Council to legislate in Shanghai, However, it has never been possible to eliminate people's doubts about the legal rank in our country's "Legislative Law". [the general plan] was jointly drawn up by the Ministry of Commerce and local governments and has been approved by the State Council to take effect. Its legal effect seems to be higher than that of department rules or local government regulations in general sense, but this still cannot be regarded as the true administrative regulation of the State Council, which makes the construction of Shanghai Free Trade Zone lack sufficient legal authority and stability. The regulations of the Shanghai Free Trade Test area, which came into effect on August 1, 2014, are the local laws and regulations clearly stipulated in the legislation Law, which can to some extent fill the lack of legislation at the national level. The regulations have more institutional innovations within the jurisdiction of local legislation, while innovations in matters within the scope of central legislative competence are still limited. In view of the above problems, the author puts forward three legislative measures to perfect the legal system of Shanghai Free Trade Zone. The first is to implement the first free trade zone basic law of our country, fundamentally change the thought that our country has always advocated "establishing the district first before legislating", and solve the key obstacle in the legal system development of Shanghai free trade area by making the basic law. The second is the implementation of enabling legislation for the Free Trade Zone, the most practical of which is to refer to the similar practice of obtaining special authorization legislation for special economic zones after the reform and opening up. Through the National people's Congress and its standing Committee with a special decision or resolution to authorize the free trade zone legislation. The third is to perfect the local legislation of the free trade area. At present, the NPC and its standing Committee provide legal support for the temporary adjustment or suspension of the application of laws and regulations in the Free Trade area, but we still need to find a way to ensure that the act can be effectively started from a procedural point of view.
【学位授予单位】：哈尔滨工业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.295

【参考文献】