部门联合立法的规范化问题研究

两个或两个以上国务院部门联合立法,已经成为我国行政立法实践中的一种惯常立法形式,在实现法律、行政法规的精细化和可操作性方面发挥了重大作用。与单个部门立法相比,部门联合立法的功能主要体现为实现部门“条条”之间的立法权责整合、防止多部门职责交叉领域立法的碎片化和部门本位主义、提升部门立法的公正性与效率性、节约行政立法成本和减少部门立法冲突、为制定行政法规进行先行制度实验等诸多方面。在部门联合立法的过程中,难免会出现各种部门权限冲突与利益协调的难题。为推进部门联合立法的规范化治理,应当对部门联合立法的时机选择、事项范围、效力等级、立法主体关系以及备案审查等方面进行充分的制度分析与研究。

Research on the Normalization of the Joint Legislation by Ministries and Commissions under the State Council

The joint legislation by two or more ministries and commissions under the State Council has become a common legislative mode in the practice of administrative legislation in China,which plays an important role in improving the refinement and operability of laws and administrative regulations.Compared with the legislation by a single ministry or commission,the joint legislation enjoys functions mainly reflected as the realization of integrated of legislative powers and responsibilities among different ministries and commissions,the prevention of legislation from fragmentation and departmental protectionism in those areas under overlapped jurisdiction of several ministries and commissions,the improvement of fairness and efficiency of legislation by ministries and commissions,the saving of cost of administrative legislation and the reduction of conflicts among rules formulated by different ministries and commissions,and the implementation of pilot system experiment for formulating the administrative regulations and so on.In the process of joint legislation by ministries and commissions,it is inevitable that there will be conflicts of powers and interests among them.In order to promote the normative governance of the joint legislation by ministries and commissions,the institutional analysis and research on its timing,scope,hierarchy,subject relationship,filing and review should be made thoroughly.