中央和地方的立法权限划分

The Division of the Legislative Power between the Central and Local Legislation

中央和地方立法权限划分总体上可以分为七个历史时期。中央与地方立法权限划分的总体思路是:遵循在中央的统一领导下,充分发挥地方的主动性、积极性的原则。但是,由于《立法法》所提供的中央和地方立法权限的划分方法、划分标准、划分技术等没有能够实现和划分思路较为妥当的衔接,以至于前述划分中央和地方立法权限的思路最终没有得以完全落实。《立法法》划分中央与地方立法权限的方法是:对中央的专属立法事项作出列举性规定,对地方的立法事项作出原则性规定,并不作具体的罗列。该种划分方法在理论和实践中存在许多问题。通过宪法对中央和地方的立法权限进行划分不太现实,通过《立法法》等法律对其进行划分需要诠释其合宪性问题。

There are seven historical stages for the division of the legislative power between the central and local legislation. The general idea of the division is based on the principle of following the leadership of the central government as well as giving full play to the initiative and enthusiasm of the local government. However,the standards and methods for the division of the legislative power between the central and local legislation shown in the Legislation Law are not appropriately linked up on the general idea of the division. As a result,the general idea of the division has not yet been fully implemented. In terms of the division method in the Legislation Law,it only enumerates exclusive matters governed by the central legislation and provides general rules on matters governed by the local legislation without enumerating,which appears problematic both in the theory and in the practice. It is unrealistic to divide the legislative power between the central and local legislation by virtue of the Constitution Law,while dividing it through the Legislation Law or other laws requires the interpretation of its constitutionality.