兜底型立法方法的规范运用

Normative Application of the Catch-all Legislative Method

兜底型立法方法作为一种同时具备扩张性和限缩性的以类推原理为基础的立法方法,其目的在于满足法律体系的周延性,提高法律条文对社会变化的应对能力。但由于兜底型立法方法具有较高的概括性,因此明确性也相对较低,在实践中容易导致涵盖范围过度扩张。为了规范兜底型立法方法的运用,应当树立限制主义类推解释理念以及基本法优于补充法的理念,严格遵守合理性原则和明确性原则,并且明确该立法方法的基本结构。

As a kind of legislative method based on the principle of analogy and possess both expansive and restrictive features,the catch-all legislative method aims to meet the extensibility of the legal system and improve the capacity of legal provisions in coping with the social changes.However,as the catch-all legislative method has high-degree generality,its clarity is relatively low,and probably causes excessively expansive coverage in practice.In order to normalize the application of the catch-all legislative method,we should have the idea of constraining analogical interpretation and the idea that the basic law is prior to the supplementary law,strictly abide by the principle of rationality as well as the principle of definiteness,and make clear the basic structure of this legislative method.