法律保留的双重构造

Dual Structure of the Requirement of a Statutory Provision

法治与民主是法律保留原则的两大基石。相较于法律保留的经典模式是从法治到民主,中国模式更多是从民主到法治。起初,法律保留以民主集中制为基础,被视为保障全国人大立法权的重要手段,但终因欠缺法治支撑而被掏空。现行宪法重整民主与法治的比重关系,大幅改造法规范层级,建立起中国独有的“法律—法规—规章”三层结构。不同于经典的“法律—命令”二层结构,行政法规是再造三层结构的关键概念。在法律保留的基础上延伸出“法规保留”,既坚持法律与法规的界限,也划分法规与规章的界限,形成逐层递进的双重构造,符合宪法的发展方向。

Democracy and rule of law are two cornerstones of the requirement of a statutory provision.In contrast to the classical model,which developed from rule of law to democracy,the Chinese model has developed more from democracy to rule of law.Initially,the requirement of a statutory provision was based on democratic centralism and was regarded as an important means of safeguarding the legislative power of the National People's Congress.However,it was eventually emptied due to a lack of rule of law support.The current constitution restructures the balance between democracy and rule of law,reshapes the hierarchy of laws,and establishes a three-tier structure of“law-administrative regulation-minister regulation”unique to China.Unlike the classical two-tier structure of“law-regulation”,administrative regulation is the key concept to the three-tier structure.The requirement of a administrative regulation should be developed in line with the constitution,so as to maintain the distinction between laws and regulations and to delineate the boundary between the two kinds regulations,thus forming a progressive dual structure.