财政支出法建构:一个文献综述

Fiscal Expenditure Law Construction:A Review of Literature

财政支出广泛介入现代社会生活,具有明显的公共性与权力性,因而需要由法律加以规定。在有关支出的法律谱系中,预算法关注财政支出的决策,财政支出法规范财政支出的实施。鉴于实施中的广泛裁量空间,财政支出法不应被视为仅有工具价值的行政手续,而应成为具有内在价值的财政过程。财政支出法赋予的程序理性和预算提供的实质理性,共同构成支出的正当性基础。因此,财政支出法制度建构的关键在于通过理性的程序设计来减少恣意,具体表现为以参与性为核心、以公开性为前提、以救济性为保障。我国的财政支出法较不完善,演进动力也不充分,较为现实的路径是先制定统一程序的行政法规,或"借力"在《行政程序法》中设立专章,条件成熟后再择机制定《财政支出法》。

The fiscal expenditure involves in a wide range of modem life, with an obvious nature of publicity and authority so that it should be stipulated by the law. In the legal genealogy related expenditure, decisions of making expenditure is prescribed by budget law, while the implementation of it is stipulated by fiscal expenditure law. Given the broad discretion in the implementation of law, fiscal expenditure should not be regarded as a tool valuable to administrative procedures, but should become a financial process which has intrinsic value. The legitimacy of it bases on the procedural rationality of fiscal expenditure and substantive rationality of budget law. The key to the construction of fiscal expenditure law is to reduce the arbitrariness through rational program design, which concretely means taking participatory as the core, openness as the precondition, and relief as the security. The realistic way to make the Fiscal Expenditure Law is to develop a unified program of administrative regulations, or try to establish of a special chapter in the Administrative Procedure Act until it is the proper time to make the law, for China＇s fiscal expenditure is the less developed and the drive force of evolution is not sufficient.