《刑法》授权省及自治区人大制定变通规定的法律内涵及合宪性辨析

A Study on the Legal Definition and Constitutionality of the Criminal Law's Empowerment to the Provincial and Autonomous Regional People's Congress for Setting up Flexible Rules

为解决民族自治地方的法律需求,《刑法》授予了包括自治区在内的省级人大对其规定进行变通的权力。但有学者认为,刑法变通权是自治立法权,如将其赋予(非自治区的)省人大实施,就剥夺了省内自治州和自治县人大的权力,不适当地扩大了省人大制定地方性法规的权限;也有学者认为,犯罪和刑罚属于全国人大的专属立法事项,《刑法》的授权规定与《立法法》的规定相冲突。本文指出,对《刑法》进行变通的权力并不属于民族自治地方人大的自治立法权范畴,包括自治区在内的省级人大的刑法变通权是基于《刑法》特别授权而产生,而非基于自治立法权;依据《宪法》和《立法法》的具体规定和基本精神,规定犯罪和刑罚的《刑法》虽只能由全国人大制定,但并不排除可授权其他主体对其规定进行部分变通,扩大被授权者的权力是授权立法的合理结果。《刑法》的授权规定违宪的观点不成立。

The Provincial and Autonomous Regional People's Congress has been authorized to set up flexible rules by the Criminal Law to meet the legal demand in national autonomous areas.Some scholars argue that if the right to modify the Criminal Law which belongs to autonomous legislative power was granted to the Provincial People's Congress(not the Autonomous Regional People's Congress),the power of the autonomous prefectures and autonomous counties in the province had been taken away and the authority of the Provincial People's Congress to formulate local laws and regulations had been improperly extended;others think that crime and penalty is exclusive legislative power of the National People's Congress,therefore the empowement of the Criminal Law is conflict with that of Legislative Law.This paper discovers that the right to modify the Criminal Law doesn't belong to autonomous legislative power of People's Congress in national autonomous areas,however it comes from the special authorization of the Criminal Law;and that although the Criminal Law's definition of crime and penalty can only be made by the National People's Congress according to the Constitution and Legislative Law,it doesn't means to exclude the flexible rules setting up by other authorized subjects,so the prolongation of the power of the authorized subject is a logical result of delegated legislation and the empowerment of the Criminal Law is a kind of constitutional action.