《立法法》试点立法条款的分离设置及其权力逻辑

The Separated Stipulation of Provisions on Pilot Legislation in the Legislation Law and Its Power Logic

本轮《中华人民共和国立法法》修改过程中形成了一种统一规范试点立法条款的共识性建议,但最终并未被采纳,而是对有关制度采取了分离设置模式。盖因此种建议的强守法主义逻辑与立法内在要求相悖,其单向视角亦未能顾及央地关系的核心现实。试点立法分离设置设计体现出差异化的权力运行方式与制度目的:由中央主导的试点制度,授出专属事权以实现特殊法治状态;由地方负责的试点制度,创新规范形式以塑造特定法治区域。其差异背后仍呈现出一以贯之的立法权配置逻辑:明确中央专属立法事权以维护法制统一,根据距离专属事权远近分层次减少对其他事权规定限制以释放改革活力。

During the process of amending the Legislation Law in this round,a consensus-reached proposal was formed to formulate the provision on the pilot legislation in a unified manner,but the final legislation did not follow it,but adopt a mode of separated formulation of provisions on relevant systems.This is because the logic of strong legalism of such proposal contradicts the inherent requirements of legislation,and its one-way perspective fails to take into account the core reality of the central-local relationship.The design of the separated formulation of provisions on pilot legislation reflects the differentiated mode of power operation and institutional purpose:the pilot system led by the central government grants exclusive powers to achieve a special state of rule of law;the pilot system responsible by the local government innovates the form of norms to shape a specific region of rule of law.Behind the differences,there is still a consistent logic of legislative power allocation:the exclusive legislative powers of the central government is clarified to maintain the unity of the legal system,and the restrictions on provisions on other powers are reduced level by level according to the distance from the exclusive powers to release the vitality of reform.