法律抵触判定原理的反思和重构

Reflection and Reconstruction on Principle of Law Contravention

上下位法律规范抵触的实质是下位法对上位法的规范逸出、不能与上位法、法律体系和法治原理相容。对抵触的判定包括事实面的规范差异识别和价值面的合法性评价两个层次。合法性评价的任务是审查下位法是否具有设定权、是否逾越设定权范围。由于下位法获得设定权的多途径和设定权界限的明确程度不一,构建抵触判定的四阶原理,完整覆盖抵触的各种情形。

The real meaning of law contravention is legal incompatibility between the scope of a lower rank norm and the higher rank norm, the legal system or the rule of law principle. The judgment of law contravention includes the identification of norm difference in aspect of fact and the legitimacy evaluation in aspect of value. As for the task of the legitimacy evaluation is to review whether there is the norm establishment right for the lower rank law and whether the right goes beyond the due scope. Since the multiple ways for the lower rank law to obtain such norm establishment right and the various clarification degree of norm establishment right scope, the four-step principle is in need to be set up to cover all kinds of law contravention.