國務(wù)院規(guī)章備案問題研究
發(fā)布時間：2018-11-01 20:14
【摘要】：吳邦國委員長在2011年3月全國人大常委會工作報告中,鄭重宣布,中國特色社會主義法律體系已經(jīng)形成,黨的十五大提出的到2010年形成中國特色社會主義法律體系的立法工作目標如期實現(xiàn)。這是我國民主法制建設(shè)進程中的一件大事,在中國立法史上樹起了一個重要的里程碑,也標志著我國全面實施依法治國基本方略進入一個新的階段。但是,在我國當前轉(zhuǎn)型時期,行政機關(guān)制定的下位法律規(guī)范(主要指本文所研究的規(guī)章)與上位法律規(guī)范(行政法規(guī)或法律)相沖突的情形時有發(fā)生;而一旦發(fā)生這種情況,司法機關(guān)、行政機關(guān)及公民個人在這種法律秩序的失序中如何作為就變得尷尬起來。筆者對于此問題的回應(yīng)在于,一方面,賴于《立法法》對于相沖突法律規(guī)范適用的規(guī)定;但另一方面,從源頭來探究其沖突的成因,對于非因情事變更需要而修改上位法的情形外,以規(guī)章備案制度的完備來消除或減少下位法的違法沖突現(xiàn)象是一種必然和有效的選擇。這也是我國多年來的法律制度建設(shè)對我們法律人的需要。 本文選定的角度是以行政立法監(jiān)督來解決實際中存在的問題,選取的研究點為規(guī)章的備案制度,并將備案機關(guān)限定于目前備案制度稍完整的國務(wù)院。就一般意義而言,在立法學(xué)上,國務(wù)院規(guī)章備案制度需要從三個方面來探討。一是何謂規(guī)章備案制度;二是目前國務(wù)院規(guī)章備案制度的完備程度研究,即研究我國的目前制度及其實施情況;三是應(yīng)當如何完善健全國務(wù)院規(guī)章備案制度。在本文的研究路徑上,首先通過案例來導(dǎo)出所研究的命題。接下來第一章首先在公法或者說行政法的視野中對國務(wù)院規(guī)章備案制度的概念和功能做了一個整體的分析研究,構(gòu)建了論題的理論框架,并將此作為基礎(chǔ)來進行下文的論述。第二章即關(guān)注了目前的我國現(xiàn)狀,從實證角度出發(fā)較全面地展開研究;第三章借鑒他國經(jīng)驗拓展視角,吸取精華剔除糟粕,以為我所用。在完成上述資料工作的前提下,第四章提出了自己對于該問題的觀點,嘗試寫出自己的創(chuàng)新點,旨在為我國的國務(wù)院規(guī)章備案制度的發(fā)展做出星火貢獻。
[Abstract]:In his report on the work of the standing Committee of the National people's Congress in March 2011, Chairman Wu Bangguo solemnly declared that the legal system of socialism with Chinese characteristics has been formed. The legislative target of the 15th National Congress of the Party to form a socialist legal system with Chinese characteristics by 2010 was achieved as scheduled. This is a major event in the process of building democracy and legal system in China. It has set up an important milestone in the history of Chinese legislation, and it also marks a new stage in the overall implementation of the basic strategy of governing the country according to law. However, in the current transition period of our country, conflicts between the lower legal norms (mainly referring to the regulations studied in this paper) and the upper legal norms (administrative regulations or laws) have occurred from time to time. And once this happens, the judiciary, the executive and the individual citizen become embarrassed in the disorder of the legal order. The author's response to this problem is that, on the one hand, it depends on the provisions of the Legislative Law on the application of conflicting legal norms; But on the other hand, to probe into the cause of conflict from the source, except for the situation where the superior law is modified not because of the change of circumstances, It is an inevitable and effective choice to eliminate or reduce the illegal conflict of the inferior law with the completion of the regulation record system. This is also the legal system construction of our country for many years the need of our legal person. The angle chosen in this paper is to solve the problems existing in practice with the supervision of administrative legislation. The research point selected is the filing system of rules and regulations, and the archival organ is limited to the State Council, which has a relatively complete record system at present. In general sense, the regulation filing system of the State Council needs to be discussed from three aspects. First, what is the regulation filing system; second, the study on the completeness of the current regulation filing system of the State Council, that is, to study the current system and its implementation in China; and third, how to perfect and improve the regulation filing system of the State Council. In the research path of this paper, the thesis is first derived by case study. Then the first chapter makes a whole analysis and research on the concept and function of the regulation filing system of the State Council in the perspective of public law or administrative law, and constructs the theoretical framework of the topic, and takes this as the basis to discuss the following. The second chapter focuses on the current situation of our country, from the perspective of empirical research; the third chapter draws on the experience of other countries to expand the perspective, absorb the essence to remove the dross, in order to use for our own use. On the premise of completing the above mentioned data, the fourth chapter puts forward my own viewpoint on this issue, and tries to write out its own innovative points, aiming at making a spark contribution to the development of the regulation record system of the State Council of our country.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D922.1;D920.0
本文編號：2304975
[Abstract]:In his report on the work of the standing Committee of the National people's Congress in March 2011, Chairman Wu Bangguo solemnly declared that the legal system of socialism with Chinese characteristics has been formed. The legislative target of the 15th National Congress of the Party to form a socialist legal system with Chinese characteristics by 2010 was achieved as scheduled. This is a major event in the process of building democracy and legal system in China. It has set up an important milestone in the history of Chinese legislation, and it also marks a new stage in the overall implementation of the basic strategy of governing the country according to law. However, in the current transition period of our country, conflicts between the lower legal norms (mainly referring to the regulations studied in this paper) and the upper legal norms (administrative regulations or laws) have occurred from time to time. And once this happens, the judiciary, the executive and the individual citizen become embarrassed in the disorder of the legal order. The author's response to this problem is that, on the one hand, it depends on the provisions of the Legislative Law on the application of conflicting legal norms; But on the other hand, to probe into the cause of conflict from the source, except for the situation where the superior law is modified not because of the change of circumstances, It is an inevitable and effective choice to eliminate or reduce the illegal conflict of the inferior law with the completion of the regulation record system. This is also the legal system construction of our country for many years the need of our legal person. The angle chosen in this paper is to solve the problems existing in practice with the supervision of administrative legislation. The research point selected is the filing system of rules and regulations, and the archival organ is limited to the State Council, which has a relatively complete record system at present. In general sense, the regulation filing system of the State Council needs to be discussed from three aspects. First, what is the regulation filing system; second, the study on the completeness of the current regulation filing system of the State Council, that is, to study the current system and its implementation in China; and third, how to perfect and improve the regulation filing system of the State Council. In the research path of this paper, the thesis is first derived by case study. Then the first chapter makes a whole analysis and research on the concept and function of the regulation filing system of the State Council in the perspective of public law or administrative law, and constructs the theoretical framework of the topic, and takes this as the basis to discuss the following. The second chapter focuses on the current situation of our country, from the perspective of empirical research; the third chapter draws on the experience of other countries to expand the perspective, absorb the essence to remove the dross, in order to use for our own use. On the premise of completing the above mentioned data, the fourth chapter puts forward my own viewpoint on this issue, and tries to write out its own innovative points, aiming at making a spark contribution to the development of the regulation record system of the State Council of our country.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D922.1;D920.0
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