涉海部门规章与地方性法规冲突解决的路径分析

An Analysis of the Approach to the Conflict Resolution Between Regulations of Marine-Related Departments and Local Laws and Regulations

2015年3月15日《中华人民共和国立法法》修改后,地方立法主体大幅扩容,造成央地立法规范的大量冲突。海洋环境是环境保护及城乡建设与管理的体系内容,涉海地方立法已成为常态。涉海部门规章与地方性法规的权限依据及效力范围不同,且所代表的利益不同,在湿地保护与海岛管理等方面均存在条文冲突,属于近位法律冲突,造成涉海法律体系融贯性阻滞。现有部门规章与地方性法规的冲突解决仍仅适用提请裁决机制,已然无法满足现存及未来大量规范冲突解决的现实需求。基于立法科学性立场与融贯性要求,应及时出台有关近位法律冲突解决的法律解释性文件,具体可以立法解释、司法解释、统一性指导意见作为基本形式构造。坚持国家利益优先,明确法律位阶高低,以地方立法特色作为原则指引,以沟通协调机制作为程序保障,从实质与形式两个方面保证涉海立法的融贯性。

Since the revision of The Law on Legislation on March 15,2015,local legislative body has expanded substantially,resulting in a large number of conflicts between central and local legislative norms.Marine environment is the content of the system of environmental protection and urban and rural construction and management.Local marine-related legislation has already become normal.Regulations of marine-related departments are different from those of local laws and regulations in terms of the basis of authority and the scope of validity,and the interests they represent are different.There are conflicts of legal articles in aspects such as wetland protection and islands management,which are near-level law conflicts,resulting in the coherence block of the marine-related legal system.The existing conflict resolution between departmental regulations and local laws and regulations is still only applicable to the adjudication mechanism,which has been unable to meet the existing and future realistic needs of a large number of normative conflict resolutions.On the basis of the scientific position of legislation and the requirement of coherence,it is necessary to issue the legal explanatory documents concerning the resolution of near-level law conflicts in time,which can be specifically taken as the basic form of legislative interpretation,judicial interpretation,and unified guiding opinion.We should give priority to national interests,clarify the levels of legal hierarchy,take the characteristics of local legislation as the principle guidance,and take the communication and coordination mechanism as the procedural guarantee,so as to ensure the coherence of marine-related legislation from the aspects of both substance and form.