立法与行政的权限分配

所谓立法与行政的权限分配即是理顺法的制定与执行之间的上下游关系,本质是权力等级序列问题,它与权力分立语境下机关之间的监督与制约关系并非一回事。所有的立法与行政权限分配方式都可以总结为分离型与下降型两种模型,其中分离型又可以细分为双重分离型、立法与行政分离型和立法分离型。"分离"意味着要么是限制下游,要么是限制上游。对学说、实务、规范三者进行彻底分析可以得知,我国立法与行政的权限分配应当是一种立法分离型结构。立法权自身分离给立法机关与行政机关,但这种分离是限制下游式,受到制约的是行政立法而不是法律;相反,行政权则是立法权的下降,既不应当存在自主行政行为,也不应当限制立法作具体措施。

Allocation of Powers between Legislation and Administration

The so-called allocation of powers between legislation and administration is to straighten out the upstream and downstream relationship between the formulation of law and the enforcement of law, which is essentially a question of power hierarchy. It is not the same as the supervision and restriction relationship between organs in the context of the separation of powers. All modes of allocation of legislative and administrative powers can be summarized as two models: separated model and declined model. The separated model can be subdivided into double separated model, separated model of legislation and administration model and separated model of legislation."Separation" means either restricting the downstream or restricting the upstream.A thorough analysis of doctrine, practice and norms shows that the distribution of powers between legislation and administration in China should be a legislative separation structure. Legislative power itself is separated from the legislature and the executive organ, but this separation restricts the downstream, which restricts the administrative legislation rather than the law;on the contrary, the executive power is the decline of legislative power, which should neither exist autonomous administrative acts nor restrict legislation to take specific measures.