设区的市地方性法规合法性审查中抵触问题研究

A Study on the Conflict in the Legitimacy Examination of Local Laws and Regulations in Municipalities with Districts

2015年《立法法》作出新的重大修改,其第72条内容规定所有设区的市能够行使地方立法权。省级人大对报请批准的设区的市地方性法规,进行合法性审查,报请批准的地方性法规不与上位法相抵触时,应当予以批准。在地方立法实践工作中,省级人大在对设区的市报请的地方性法规审查批准过程中,面临如何处理好设区的市地方性法规与上位法相抵触的问题。结合对全国部分省、自治区立法有关规定和做法的梳理,对目前“不予批准”和“修改后予以批准”以及“附修改意见方式予以批准”等几种处理抵触问题的主要方式进行分析,力图为妥善处理设区的市地方性法规合法性审查中抵触问题抛砖引玉。

Article 72 of the newly amended Legislation Act of 2015 stipulates that all municipalities with districts can exercise local legislative power. The standing Committee of the Provincial People's Congress shall examine the legality of the local laws and regulations submitted for approval by the municipalities with districts. If the submitted local decree does not contravene the superior law,it shall be approved.In the practice of local legislation,the standing Committee of the Provincial People's Congress is faced with the problem of how to deal with the conflict between the municipal local laws as well as regulations and the superior laws in the process of examining and approving the municipal local laws and regulations in municipalities with districts. Combing the relevant provisions and practices of the legislation of some provinces and autonomous regions in China,this paper analyzes the advantages and disadvantages of several main ways to deal with the conflict problems at present, such as "no approval","approval after modification",and "approval with modified opinions",trying to deal with the problems of conflict in the examination of the legitimacy of the municipal local laws and regulations in municipalities with districts.