部门规章立法权限:《行政处罚法》与《立法法》的冲突与弥合

Legislative Authority of Departmental Regulations:Conflict and Bridging Between Administrative Penalty Law and Legislation Law

《行政处罚法》与《立法法》关于部门规章的权限存在设定权与规定权、概括授权与具体授权的冲突。《立法法》是宪法相关法而不是行政性法律,将两法理解为一般法和特别法进而适用的弥合方案,解释能力不足,针对性不强。取消部门规章行政处罚设定权的主张亦未在最新修订通过的《行政处罚法》中得到回应。基于行政法治的一般理论,部门规章罚则内容只能对法律法规等罚则进行细化。原则上只能有法律、行政法规等上位法规范的具体授权,部门规章才能进行减损权利、增加义务的设定,《行政处罚法》第13条第2款仅是作为概括授权的规范依据。同时,部门规章对新型事项设定的减损权利增加义务规范可将《行政处罚法》第13条第2款作为概括授权依据,但需将此情形下的部门规章备案制改为批准制,以严格约束和控制部门规章的立法权限。

The administrative penalty law and the legislative law have conflicts between the power of setting and stipulating the authority of departmental rules,the general authorization and the specific authorization.The legislative law is a constitution-related law,not an administrative law.If we take the two laws as a general law and a special law and then applied as a bridging plan,the interpretation ability is insufficient and the pertinence is not strong.The claim to abolish the power to set administrative penalties in departmental regulations has also not been responded to in the newly revised Administrative Penalty Law.Based on the general theory of administrative rule of law,the content of penalties in departmental regulations can only refine penalties such as laws and regulations.In principle,there can only be specific authorizations from higher-level laws and regulations such as laws and administrative regulations,and departmental rules can set derogation rights and increase obligations.The second paragraph of Article 13 of the Administrative Punishment Law is only the normative basis for general authorization.At the same time,the derogation rights and increasing obligations set by departmental rules for new matters can use Article 13 paragraph 2 of the Administrative Punishment Law as a general authorization basis,but the departmental rule filing system in this case needs to be changed to an approval system to strictly restrict and control.