紧急状态的宪法实施机制与完善路径

A Study on the Implementation Mechanism and Improvement Path on the State of Emergency Based on China’s Constitution

我国宪法紧急状态确立了立法机关保留、法律优先原则、要式职权行为、比例原则等法定实施标准,但在实践中,由于《传染病防治法》等单行立法包含了事实上的紧急状态非常措施,且专门的紧急状态法缺位,导致国家决定和宣布紧急状态面临困难,紧急状态下应当由全国人大常委会另行规定的非常措施缺失,基层实践中出现以应急状态之名行紧急状态之实的争议。完善国家非常状态法治建设,关键是加强紧急状态的宪法实施工作,当前,紧急状态立法应遵循上位法、关系法、平衡法的原则,宜采取一般法与单行法相结合的渐进模式。紧急状态宪法实施需规范行政职权行为,落实全国人大常委会"另行规定"、法律监督、执法检查、答复法律询问等职权。

In the course of prevention of coronavirus disease,many places were declared to enter the"wartime state",and"wartime control measures"were adopted.The"wartime state"relates to distinctly different Constitution and laws which involved emergency situation,degrees of emergency,states of war and so on.However,owing to the cognitive deviation of relevant laws and regulations,administrative arbitrariness and administrative malfeasance even occurred in some places.The Constitution of China has established statutory implementation standards of the state of emergency,such as the reservation of the legislature,the doctrines of law superiority,the act of formal administrative,and the principle of proportionality.Nevertheless,in practice,due to separate legislation such as"Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases"contains actual emergency measures as well as the absence of specialized emergency laws for a long time,which made it tough for the country to decide and declare an emergency.In addition,the extraordinary measures separately stipulated by the Standing Committee of the National People’s Congress are absent.Thus,the phenomenon that the grass-roots government carry out emergency measures in the name of an emergency state occurs.To comprehensively improve the ability of prevention,control and governance by law,it is urgent to strengthen the implementation of the Constitution on the state of emergency and state of war.The legislation of the state of emergency in China should follow three principles,namely upper law,relations law,and control law.On the other hand,the progressive mode of combination between general law and separate law is also promoted.Besides,China’s emergency law is required to standardize administrative functions and conducts,and implements the relevant provisions of the Standing Committee of the National People’s Congress,legal supervision,law enforcement inspections,and answering legal inquiries.