小而有度:地方“小切口”立法的策略选择

Small but Limited:on the Strategy Selection of Small-Theme Local Legislation

“小切口”立法是一种通过凝练立法选题以简化立法结构、控制条文规模、突出实施性条款比重,增强立法的针对性和可操作性,最终提升整体规制效果的立法思维,具有坚实的理论基础和现实必要性。但地方在“小切口”立法的过程中却存在立法选题碎片化、形式一味求简、内容唯问题化等误区,这是多重因素复杂作用的结果,如新时期地方立法的空间、角色与偏好的转变,地方立法部门政绩观与风险意识的偏差,规避“小切口”立法误区的客观基础不足等。“小切口”立法策略的选择,理论上应围绕立法是否必要、主题是否适当、方案是否高效三个环节展开,基础是法不干涉琐事、立法谦抑论、成本收益分析等理论工具的体系适用;规制路径上要通过类比“小快灵”全面界定其规范内涵,优化对“小切口”立法策略的程序规制;规范实现上应重视《立法法》的精细化实施、地方立法条例的具体机制建构以及优化备案审查对“小切口”立法策略选择的弹性引导。

Small theme legislation means the limited theme of legislation,the simpler legislative structure,miniature scale of legislation,more pertinence and maneuverability.Its ultimate goal is the adequate implementation of the regulation.As a principle of legislative work with long-history development,it has become a trend direction recently in central and local regulation,especially the latter.The legitimacy of this principle is based on diverse factors,such as phased theory of rule of law,legislative power allocation between the central and the local,pragmatism thought and so on.It also has many advantages to the practice of rule of law construction,especially for the local legislation.In one word,this principle is important and necessary to the system of socialist rule of law with Chinese characteristics.However,it is also facing to many problems such as pursuing small theme blindly,different standards,and lack of adequate regulation basis.According to the issues mentioned above,this article tries to deal with the scientific standards of small theme legislation,and then describes the framework of system mechanism.Specifically,the alienation of small theme legislation leads to many problems as follows.It is absolutized,blindly simplification,and it makes legislation follows specific problems and policies only.The reasons are multivariate and complex:the new change of local legislation in regulative space,roles and preference,misunderstanding about risk awareness and achievement view of local legislature,objective limitation of the risk regulation of alienation,are all playing key roles.Such problems adverse to giving full play to the expected value of small theme legislation.Regrettably,there is not enough attention to these problems in theory and practice currently.How to build a scientific framework to solve such problems in theory?First of all,there are three important factors for the determination.Is the legislation necessary?Is the theme suitable?Is the legislative plan efficient?There is a progressive relationship between these factors.Then there are also three theories we should pay attention to as the basis,such as"de minimis non curat lex",restraint of legislation,and Cost-benefit analysis.Thereby,the process of judgment should be divided into four levels.Firstly,is it should be regulated immediately?Secondly,is legislation necessary?Thirdly,is legislation feasible?Last but not least,is specialized small theme legislation reasonable?So far,we havestructured a preliminary framework in theory.The next and the last issue for this article is how to achieve the theoretical construction through a legal mechanism of regulation.The important points of the legal mechanism contain three aspects.Firstly,it is wise for us to grasp the comprehensive connotation of the small theme legislation scientifically.Comparing with the connotation of Small-Fast-Flexible Legislation is very helpful.Secondly,we should pay enough attention to the programmatic regulation of selected topic of legislation,such as strengthening the controlling effect during the stage after the legislation plan,extending public participation,and perfect the functional configuration of small theme legislation between different kinds of local legislation forms.Finally,as the specific mechanism,the keynote of central legislation is refined implementation.Based on complex reasons,it is no need to write"small theme legislation"into Legislation Law as a legal terminology formally,but the interpretations of relative clauses in Legislation Law is more important.Accordingly,the main mission of local legislation is design correlative mechanism according to the interpretations of Legislation Law mentioned above.On the basis of the above,as a complementary factor,optimizing the elastic guiding of the small theme legislation is also indispensable.The communication mechanism and case-guidance system of regulations filing and review provide a suitable reference frame.