论澳门行政法规的司法审查——以个案研究为视角

Judicial Review of Macao's Administrative Regulations: A Case Study

澳门行政法规司法审查始于2005年的"丹麦工程师逗留案"。该案与后续案件具有很强的同质性,即争议均与澳门行政法规的权限范围这一问题有关。通过分析该案四次判决的推理过程,笔者发现前后两次判决分别体现为法律政策学与法律解释学的论证思路,而其所实现的效果与意义是不同的。这类案件推动了"立法法"的出台,该法律为减少此类案件起到了一定的作用,但潜在的相关问题可能会制约其规范功能的发挥。这一司法争议与立法回应的过程是澳门回归后行政法规司法审查的整体缩影,在某种程度上也是澳门各级法院裁判权分配以及各机关权力关系互动的样态缩影。

The judicial review of administrative regulations in Macao began with the'Danish Engineers’ Stay'case in 2005. The case has strong homogeneity with the subsequent cases as the disputes are all related to the jurisdiction of Macao’s administrative regulations. By analyzing the reasoning process of the four judgments in the case, it is found that the first two judgments demonstrate the argumentation mode of legal policy and the latter two legal interpretation, and their effect and significance are different. The cases of this kind have led to the promulgation of the'Legislation Law'. Although the enactment of the Law has contributed to reducing such cases, the potential problems may restrict its normative function. This process of making legislative response to judicial disputes is a microcosm of the judicial review of the administrative regulations in Macao, and to some extent of the jurisdiction distribution of the courts at all levels, and the relations of legislative, administrative and judicial power after Macao’s return to the motherland.