立法权转授的合法性控制

The Legality Control of Sub-delegated Legislation

作为授权立法的一种特殊形式,立法权转授是指立法者将经由授权获得的立法权部分或者全部授予其他主体的行为。西方法治国家有“授权的权力不能再转授”之法谚,对立法权转授严格控制。禁止权力转授的理据在于,权力转授辜负了授权者的信任,有违职权法定原则。立法权的转授还会带来不同法律文件之间效力的混乱,引发低位阶立法掏空高位阶立法的风险。我国《立法法》第12条确立的禁止立法权转授原则仅限于禁止国家立法权的转授,并不适用于其他层级的立法权转授以及法条授权立法的转授。立法权转授是我国法治实践中值得关注的一类现象,它已经对罪刑法定、税收法定和法律保留等形式合法性原则产生了不小的冲击。为将立法权转授纳入法治轨道,立法者应考虑扩大禁止立法权转授的适用范围,限制立法权转授的层级和方式,同时完善跨层级授权立法的制度通道,并将立法权转授纳入备案审查和法院附带审查的范围。

Sub-delegated legislation,as a special form of delegated legislation,refers to the act of delegating part or all of the legislative power obtained through delegation to another.Delegated legislation appears in two forms:delegated legislation by decision and delegated legislation by provisions.Sub-delegated legislation often appears in the form of delegated legislation by provisions,so it is more difficult to supervise than other delegated legislation.In China,the State Council and local people’s congresses at or above the level of cities divided into districts have three kinds of legislative powers:inherent legislation,executive legislation and delegated legislation.Both inherent legislation and executive legislation are regarded as primary legislation,and their delegated legislation is not regarded as sub-delegated legislation.Western countries generally impose strict control over sub-delegated legislation,which is reflected in the legal maxim delegatus non-potest delegare.The reason for prohibiting sub-delegated legislation is that it violates the trust of the delegator and the principle of statutory authority.Sub-delegated legislation can also bring about confusion about the validity of different legal documents,leading to the problem of low-level legislation hollowing out high-level legislation.Article 12 of Chinese Legislation Law establishes the principle of prohibiting sub-delegated legislation.However,it prohibits sub-delegation of legislative power only at the national level,but not in other situations.In China’s judicial practice,some parties have invoked Article 12 of the Legislation Law to deny the effect of sub-delegated legislation.However,courts do not support such claims and turn a blind eye to this problem.Some administrative normative documents adopted by local governments through sub-delegated legislation have become the direct legal basis for criminalization.In China,sub-delegated legislation has become a remarkable phenomenon and has had a huge impact on the legality principle of statutory crimes and punishments,statutory taxation and law reservation.In order to bring sub-delegated legislation onto the track of the rule of law,it is necessary to expand the scope of the principle of prohibition of sub-delegated legislation and make the prohibition in Article 12 of the Legislation Law a fundamental principle of legislation.Meanwhile,in order to leave room for necessary sub-delegated legislation,exceptions to the principle of prohibition of sub-delegated legislation should be set up,but restrictions should be imposed on the level and method of such sub-delegation.To avoid sub-delegated legislation as far as possible,the delegator may directly delegate the legislative power to the subjects most in need of the legislative power through cross-level delegation,which also necessitates the expansion of the scope of the delegated subjects in the Legislation Law.Finally,people’s congresses should supervise sub-delegated legislation through the review of normative documents submitted to them for recordation,and the court can also play a role in this respect through incidental review of administrative normative documents.