合法性审查之补充:权力清单制度的功能主义解读

Supplement to the Legality Review: Functionalist Interpretation Power List System

批准生效、备案审查是我国合法性审查制度的核心内容,对维护我国社会主义法制统一发挥了根本性作用。从我国法治建设的实际来看,合法性审查机制并不能完全阻却不合法的法律规范进入现实的法治实践。这样,在我国法治建设实践中就诞生了权力清单制度这种合法性审查补充机制,它通过“清权”、“减权”、“制权”和清单的“动态调整”等,一方面可以消解批准生效、备案审查等合法性审查机制“失灵”引发的问题,另一方面能够将地方的探索和经验正当化,进而为科学立法奠定坚实的基础。

Ratification and recording are the core contents of the system of legality review in China which plays a fundamental role in maintaining the unity of socialist legal system. From the reality of building the rule of law in China, the system of legality review can not completely prevent illegal norms from entering the real practice of rule of law. Thus, the system of power list emerges in China's practice of building the rule of law as a supplementary mechanism to the legality review, which, through the clearance of power, reduction of power and establishment of power as well as dynamic adjustments of list, may dissolve problems caused by the failure of ratification, recording and other legality review mechanism on one hand, and justify the local exploration and experience and then lay a solid foundation for scientific legislation on the other hand.