立法保留范围之规范解释——兼论《立法法》第八条、第九条的修改

A Normative Interpretation of the Scope of Legislative Reservation——On the Amendment of Articles 8 and 9 of the Legislative Law

立法保留的问题核心是其范围问题。《立法法》第八条和第九条存在文义模糊与解释困难。形式上,立法保留在《立法法》上的规范依据是第九条的“但书”,但若将立法作为义务确立为立法保留的核心意义,则立法保留在《立法法》上的规范依据就不仅是第九条的“但书”,还包括第八条。《立法法》规定立法保留的事项范围,旨在明确全国人大及其常委会的专属立法权,但通过规范解释显示出《立法法》对待全国人大及其常委会的立法作为义务的“谨慎”态度。依宪法有关规定及宪法法理分析,建议未来修改《立法法》时,对“专属立法权”的概念进行明确界定,将第八条中的“下列事项只能制定法律”进行修改,明确区分两类立法作为义务,并对第九条的“但书”进行修改。

The focus of legislative reservation is the scope of reservation.Article 8 and Article 9 of the Legislative Law are ambiguous and difficult to interpret.In form,the normative basis for legislative reservation in the Legislative Law is the proviso of Article 9.However,if legislation is regarded as the core meaning of legislative reservation,the normative basis of legislative reservation in the Legislative Law includes not only the proviso of Article 8,but also the proviso of Article 9.The Legislative Law stipulates the scope of the matters of legislative reservation,aiming to clarify the exclusive legislative power of the NPC and its Standing Committee,but through normative interpretation,it shows that the Legislative Law has a“cautious”attitude towards the legislation of the NPC and its Standing Committee as an obligation.According to the relevant provisions of the Constitution and the analysis of constitutional law,this article proposes as follows:when amending the Legislative Law in the future,firstly,the concept of“exclusive legislative power”should be clearly defined;Secondly,the provision that“following matters can only be legislated”in Article 8 should be amended;Thirdly,the two types of legislation should be clearly distinguished as obligations and the proviso of Article 9 should be amended.