论授权立法的利弊得失

Advantages and Disadvantages of Delegated Legislation

在分析授权立法历史发展的基础上,指出授权立法自产生以来,一方面人们质疑和指责授权立法违反了宪政民主的基本价值和原则,尤其是违反了古典宪政分权理论,怀疑其存在的合法性;另一方面,各国政治和法学理论的主流又主张以发展的眼光看理论,认为授权立法的危险和隐患是可以避免的,甚或有些是由于对授权立法的不当使用引发的;而事实上,授权立法在实践中是不可或缺的,关键在于完善授权立法监控制度、强化授权立法的民主性、兴利除弊,避免其具有的潜在危险及被误用和滥用。

Delegated legislation has been challenged and even criticized by people ever since its emergence, but it has rapidly spread and flourished in the legal practice of the world. On the one hand, it has been questioned, even criticized due to ＂threatening＂ the fundamental values and democratic principles of constitutionalism, in particular, in violation of the classical theory of constitutional separation of powers, with its legitimacy doubted. On the other hand, it is claimed that the theory of constitutionalism should be developed, the defects and risks of delegated legislation can be avoided, or even, to some extent, these problems just stem from the improper use of delegated legislation. As a matter of fact, the author holds that delegated legislation is indispensable under the conditions of modern society. The key is to improve the supervision and control system of delegated legislation to avoid its potential risk, misuse and abuse.