论自治条例和单行条例的法律地位问题

On the question of the legal status of the regulations on the exercise of autonomy and the specific regulations

制定自治条例和单行条例 (自治法规 )是民族区域自治地方自治机关的一项自治权。自治法规的效力等级高于一般地方性法规而具有法律性质 ,但其适用范围仅限于本民族区域自治地方。上级国家机关要尊重和保障民族区域自治地方自治机关的自治权 ,但自治法规不能规定和约束上级国家机关。制定机关和批准机关对于自治法规都享有“半个立法权”的说法 ,实际上是把报请批准自治法规视同提请审议自治法规案 ,把自治机关享有的自治法规制定权等同为拟定权。自治州、自治县的自治法规报请省级人大常委会批准后生效的规定 ,是一项宪法原则 ,这是我国民族区域自治地方立法体制的一大特点。在自治法规的效力等级和适用范围问题上的分歧 。

It is one of the autonomous rights of the self government organs of the ethnic autonomous areas to enact regulations on the exercise of autonomy and specific regulations. The effect degree of the regulations on the exercise of autonomy is higher than that of ordinary localitic regulations and possesses the nature of law, however, the applicable range of the regulations on the exercise of autonomy is confined the ethnic minority's autonomous area only. The state organs at higher level should respect and guarantee the autonomous rights of the self government organs of the ethnic minority's areas, but the regulations on the exercise of autonomy can not restrain and bind the state organs at the higher levels. The statement that the formulation organ and the ratification organ both enjoy “a half of the legislative power” towards the regulations on the exercise of autonomy has in fact cofused reporting the regulations on the exercise of autonomy to the higher authorities for approval with submitting the proposal on regulations on the exercise of autonomy to the higher authorities for examination and approval, has cofused the rights enjoyed by organs of self government in working out regulations on the exercise of autonomy with the power of the examination and approval. The stipulation that the regulations drawn up by the autonomous prefectures and counties have to be submitted to the Standing committee of the Provincial People's Congress for examination and only when they are approved will they become effective is a constitutional principle, it is a major characteristic of the legislative system in China's ethnic autonomous areas. The divergence of views on questions of the effect degree and applicable range of the regulations on the exercise of autonomy oroginate from the different understandings of the regional autonomous system for the ethnic minorities.