【作者】 张丽红；

【导师】 杨成炬；

【作者基本信息】 安徽大学 ， 法律， 2011， 硕士

【摘要】 授权立法是指有权立法的国家机关通过特别授权决定或授权法条等形式,将属于自己立法权限范围内的立法事项授予其他有关国家机关进行立法,被授权机关在授权范围内遵照法定程序进行立法的活动。其产生于资本主义发展之初,伴随着社会生活的复杂化、政府职能的扩张而逐步发展,现已成为各国立法制度的重要组成部分,是各国政府管理的重要手段。西方授权立法的理论依据是源于三权分立理论的“代理学说”,而我国授权立法的理论依据则为“转移说”,即立法权实现了实质上的转移,经授权后已变成被授权者职权的组成部分。授权立法的出现是经济社会发展变化的必然要求。中国的授权立法是在改革开放过程中出现的。它的出现在一定程度上推动了社会发展进步,对中国立法制度的完善、经济的发展都起到了积极作用,并越来越多地见诸于国家层面和地方层面的立法之中。我国的授权立法在形式上可以分为两类,一类是特别授权,即立法机关以明确的专门决议或者决定的形式,授予国家机关行使某些立法的权力,被授权机关根据授权的要求和条件进行立法的活动；另一类是法条授权,即由拥有固有立法权的主体通过在法律、法规中设定一个或者多个授权条款,将某一具体立法事项授予有关国家机关,有关国家机关根据此授权进行专项立法的活动。从我国授权立法的实践上来看,仍存在一些问题：其一,存在被授权的主体不适合的情形；其二,在授权立法的起始点和时效性上也存在问题；其三,在实践中存在授权随意性大的问题；其四,存在特殊授权目的不够明确的问题；其五,目前在我国的立法实践中对授权立法的监督机制不完善。因此,为完善中国特色社会主义法律体系,更好地开展授权立法工作,提出如下建议：1、明确授权立法的基本原则。其一,坚持社会主义法制统一原则,授权立法不得与宪法和法律的基本精神相抵触；其二,坚持授权明确原则,包括明确的授权目的、授权的内容、授权的时效；其三,坚持授权与监督并举原则,重视授权后的监督制约。2、正确把握授权立法的基本前提。特别立法授权只宜有以下两种情形：其一,因社会发展迅速,现行法律法规暂无规定,且短期内相关立法无法启动或者难以完善,又亟需创设新制度、新规范。其二、在少数民族区域或者某些特定时间等特殊情况下,对上位阶法律或者法规需要变通执行的。3、健全有效地授权立法监督机制。其一、设置专门的授权立法监督机关,扩大监督主体的范围；其二、完善备案及报批制度,对其进行合法性审查,使其基本立意与授权方制定原法的初衷相符合；其三、探索建立撤销制度,在授权或授权立法所立的法律法规或者规范性文件生效之后,由于特定事由的出现,授权方得以撤销该项授权,使其复归已有,或撤销该项立法,使其归于无效。4、完善被授权主体的工作机制。其一,不得超越被授权范围行使立法权力；其二,不得将授予的立法权再授权予其他主体；其三,不可推卸责任原则,在行使关联型授权立法时,有关国家机关不得拖延或放弃行使所授予的立法权。更多还原

【Abstract】 Delegated legislation means that state organs which are entitled to make laws delegate their legislative power to other related organs through specific delegation or delegated statutes and let them make laws, the authorized organs may make laws in the prescribed procedure within the scope of authority. Delegated legislation arose in the early stage of capitalist development and developed gradually with the social life’s complicating and the government function’s expanding. Now it is a major part of legislative system and is an important government management means in each country. The theory of western delegated legislation originated from the "Agency Doctrine" which was a part of the theory of separation of powers between the legislative, executive and judicial powers, while Chinese delegated legislation came from "Shift Doctrine", which claimed legislative power got a virtual shift, after delegation, it became a component of the power of the authorized organs.Delegated legislation is a vital requirement of the social economic development. Chinese one was formed in the course of reform and opening-up. Its appearance has boosted the social development in a way, and played an important role in Chinese legislative system perfection as well as economic development. Now it happens in more and more state and provincial legislation process.Chinese delegated legislation may be classified into two forms. One is specific delegation, which means legislative bodies authorize certain organs to exercise the power of making certain laws through a specific decision or resolution, and the authorized organs conduct making laws under the delegated requirements and conditions. Another one is statute delegation, which means the legislative body grants certain specific legislative affairs to a related organ through setting up one or several delegation statutes in the laws or regulations, then this organ may conduct specific legislation activities on the basis of the delegation.Judging from the practice of Chinese delegated legislation, we may find some problems with it. First, certain authorized bodies are not suitable. Second, there are somethings wrong with the starting and the ending point of delegated legislation and its effectiveness in a given period of time. Third, delegation is conducted at great will sometimes in practice. Forth, specific delegation is conducted sometimes with no clear aims. Fifth, current supervision mechanism for delegated legislation is not perfect in fact.Therefore, good tips for perfecting socialist legal system with Chinese characteristics and for conducting delegated legislation better are summarized as follows:1. Specifying fundamental principles of delegated legislation. The number one is to stick to the socialist legal unification principle. Delegated legislation mustn’t be in conflict with the Constitution and the basic legal spirits. The number two is to obey the principle of clear delegation, which specifies delegated aims, delegated contents, and delegated time limits. The number three is to stick to delegation and supervision unification principle. Great emphasis should be put on supervision restriction.2. Grasping basic prerequisites for delegated legislation. Specific legislation delegation is only applicable to the following two conditions. One is that because of rapid social development, current laws or provisions lack certain regulations, besides, relative legislation is not to be started or perfected during the short term, in addition, establishing a new system or rules is imperative. Another one is that in certain ethnic regions or during certain specific time periods or under other special conditions, higher laws or provisions have to be conducted with adaptation.3. Perfecting effective delegated legislation supervision mechanism. The first is to set up special delegated legislation supervision organs and expand the scope of their power. The second is to perfect system of reporting for the record and for the approval, and to examine the legitimacy of the authorized organs in order to keep their legislation intention in consistency with that of the delegation provider just as he himself make the original law. The third is to try establishing revoking system. After the laws or provisions or regulatory rules made by delegation or delegated legislation take effect, if a special incident takes place, the delegation provider may take back the delegation, or revoke the legislation made by the authorized organs.4. Perfecting the authorized organs’working machanism. First, it is not allowed to exercise legislation power beyond the scope of authority. Second, it is not allowed to redelegate the given power to other bodies. Third, it is to obey the rule of not shirking responsibilities. When conducting interrelated delegated legislation, the related state organs are not allowed to delay or give up exercising the delegated power of making laws.更多还原