法的清理视阈下“新法优于旧法”规则的理解与适用

Understanding the Rule of"New Law Is Superior to Old Law"from the Perspective of Legal Clearance

新法优于旧法,是《立法法》规定的法律冲突解决规则,法的清理也是解决法律规范之间不一致的重要方式。抽象的冲突解决规则缺乏权威具体的解释,“包裹立法”式法的清理批量更新旧法,给理解和适用冲突规则带来了困扰,司法审判中已出现冲突规则理解不一致的现象。理解“新法优于旧法”规则的难点,在于对“同一机关”“制定”“规定”“新法”“旧法”等要素的规范含义认识不清。法的清理、修改对“新法”的认定产生不同影响,具体表现为“部分新法说”与“全部新法说”之分。“部分新法说”认为只有经过清理修改的条款是“新法”,其他条款仍为“旧法”,这一理解更符合法治原则,为司法机关明确裁判适用的法律条款提供规范指引,也给立法机制和立法技术提出了更多要求。

The new law is superior to the old law, which is the rule of law conflict resolution stipulated in the Legislative Law, and the legal clearance is also an important work to resolve the inconsistency between the legal norms. In practice, the abstract conflict resolution rules lack authoritative and concrete interpretation, and the "package legislation" legal clearance updates old laws in bulk, disturbing the understanding and application of conflict rules. In judicial trial, there have been the phenomena of unclear reasoning and different understanding of conflict rules. The difficulty in understanding the rule that the new law is superior to the old law lies in the unclear understanding of the normative meaning of the elements such as "the same organ", "the formulation", "the provisions", "the new law, the old law" and so on. The reorganization and revision of the law have different influences on the identification of "new law", which is embodied in the division of "partial new law theory" and "whole new law theory". "Partial new law theory" holds that only the amended provisions are "new laws", while other provisions are still "old laws". This understanding is more in line with the principle of rule of law, and also provides normative guidance for judicial organs to clarify the applicable legal articles, and also puts forward more requirements for the legislative mechanism and legislative techniques.