宪法保留:对基本自由权利限制的限制原则

On the Constitutional Restraints:a Principle Restriction on the Fundamental Rights of Freedom

法律保留原则要求某些重要事项必须留给立法机关以法律的形式加以规定,目的是约束行政权,防止行政权滥用,并在客观上要求司法机关依法裁判;然而,宪政的本质特征之一是有限政府的理念,即使是立法机关的权力本身也应当是有限度的。实际上,宪政国家违宪审查制度的普遍确立正是主要基于对立法权滥用的矫正;而我国从依法治国到依宪治国思路的转变也在事实上承认了立法权本身存在滥用的可能。因此,从法律保留到宪法保留,是保障人民基本自由权的重要原则,这一原则立基于对多数决暴政的恐惧和对有限政府理念的信奉,它在一定程度上杜绝了宪法一手承认人民基本自由权利,而法律的另一手却又予以剥夺的弊病。

In compliance with the legal restraint principle, some essential matters should be regulated by legislation so as to avoid the abusive exercise of administrative power and to ensure the judicial department to make judgments according to law. However, according to the concept of limited government, the legislative power itself needs restraints. In fact, the unconstitutional review is the very system established in constitutional governments to rectify the abusive exercise of legislative power. The transformation from the rule of law to the rule of constitution in China has actually admitted the possibility of abusive legislative power. The constitutional restraint, derived from legal restraint, is a major principle to safeguard people’s fundamental right of freedom. For fear of the tyranny of majority voting and trusting in the limited government, such principle can overcome the defect that people’s fundamental rights, granted by the Constitution on one hand, would be deprived by laws on the other hand.