委任立法片论

A Fragment on the Delegated Legislation

文章认为 ,委任立法是指行政机关依据立法机关以法定程序制定的授权法创制法规的行为。委任主体、委任立法主体和授权法是委任立法的三个构成要件。我国宪法体制上的缺憾导致我国并无严格定义上的委任立法 ,它给立法实践和理论研究带来了极大的困难。解决这些问题的方法是 :取消行政机关实际存在的固有立法权 ;立法法典化 ;建立委任立法制度 ;建立司法审查制度。作者对中外学者关于委任立法的种种观点提出了具体的商榷意见。

In this paper,the author holds that the delegated legislation is the legislative action that the executive authority makes legislations according to the delegating law which was made by legislative organ in legislative procedure.The delegated legislation includes three elements:the delegating organ.the organ of the delegated legislation and the delegating law.The defect of the constitutional systems of China causes that there is no the delegated legislation in the strict sense in China and it brings about the great difficulties in legislalive action and theoretical researches.The methods to solve the above questions includes:abolishing the legislative powers of the executive authority stipulated in the constitutional laws;instituting the systems about the delegated legislation;adopting The doctrine of strict rule in the legislative practice and instituting the systems about the judicial review.In the paper,the author reconsiders some points about the delegated legislation holded by the researcheres at home and abroad.