论香港特区行政权与立法权的相互关系

发布时间：2019-06-12 08:59

【摘要】：香港特区建立已逾十多年,《基本法》框架下的立法原意,是以行政为主导,行政与立法之间相互配合、相互制约。但在新的宪政架构中,《基本法》设计的行政主导制在政制运行过程中没有很好体现,行政机关与立法机关之间的摩擦日趋紧张,甚至出现“立法主导”的趋势。如何维护和突出行政主导制,促使行政立法形成良性互动,具有十分重要的现实意义。首先,现行的行政长官与立法会产生基础不同,行政长官无法在立法会获得稳固的支持,且行政长官选举中政党执政功能被制度性剔除,使得政党无法成为连接行政长官和立法会之间关系的纽带;其次,发挥协调行政与立法关系的行政会议未实现其沟通作用,且立法会常借由法律灰色地带,滥用《基本法》赋予的权力;最后,港人本土意识强国家认同感低,以上是造成行政与立法关系过于紧张的主要因素。因此,如何促进行政与立法的良性互动?第一,落实行政长官普选制弥补其认受性不足的问题外,在此基础上需要正视政党的力量,寻求管治者同盟。第二,改革行政会议人员出席机制与工作方式方法,发挥行政会议沟通功能。除做到上述两点外,还需规范立法会权责,加强行政长官自身建设,正确引导政治文化的发展方向,必要时可以发挥中央人民政府的积极作用,最后需要保障行政与立法良性互动下的立法监督,才能真正做到以行政为主导,行政与立法相互配合、相互制约。
[Abstract]:It has been more than a decade since the establishment of the Hong Kong Special Administrative region (HKSAR). The legislative intention under the framework of the basic Law is to take the executive as the leading factor, and the executive and the legislature cooperate with each other and restrict each other. However, in the new constitutional structure, the executive leading system designed by the basic Law is not well reflected in the process of political system operation, and the friction between the executive authorities and the legislature is becoming more and more tense, and even the trend of "legislative leading" appears. How to maintain and highlight the administrative leading system and promote the benign interaction of administrative legislation is of great practical significance. First of all, the existing Chief Executive is different from the Legislative Council, the Chief Executive cannot obtain solid support in the Legislative Council, and the ruling function of the political parties in the Chief Executive election has been systematically eliminated, which makes the political parties unable to become the link between the Chief Executive and the Legislative Council. Secondly, the Executive Council, which plays a role in coordinating the relationship between the executive and the legislature, has not realized its communication role, and the Legislative Council has often abused the powers conferred by the basic Law through the grey areas of the law. Finally, the strong local awareness of the people of Hong Kong has a low sense of national identity, which is the main factor causing excessive tension between the executive and the legislature. Therefore, how to promote the benign interaction between the executive and the legislation? First, apart from the implementation of the system of universal election for the Chief Executive to make up for his lack of acceptability, it is necessary to face up to the power of political parties and seek an alliance of managers. Second, reform the attendance mechanism and working methods of Executive Council personnel, and give full play to the communication function of Executive Council. In addition to the above two points, it is necessary to standardize the powers and responsibilities of the Legislative Council, strengthen the construction of the Chief Executive himself, correctly guide the development direction of political culture, and give full play to the positive role of the Central people's Government if necessary. Finally, it is necessary to ensure legislative supervision under the benign interaction between the executive and the legislation in order to truly take the executive as the leading, the executive and the legislation cooperate with each other, and restrict each other.
【学位授予单位】：暨南大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D921.9

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