越权立法的认定与处理

越权立法,除了指超越权限制定法律规范的行为,也指超越立法权限制定的法律规范。认定越权立法,须以专属立法权限为基础,并关注普通法律对立法权限的个别规定;基于目前立法权限的划分,可能越权的只有法规和规章。越权立法属于立法违宪,司法机关可以拒绝适用越权制定的规章,但不得拒绝适用越权制定的法规。审查机关撤销越权立法的决定应具有有限的溯及力:刑事案件,要重新审理;民事案件和行政案件,应即时“冻结”。

Identifying and Settling Ultra Vires Laws

The Chinese term “Yue-Quan-Li-Fa” has two meanings: (1) unauthorized law-making acts; and (2) laws made ultra vires. In this article only the latter is observed. Only based on exclusive legislative authority and specific provision of general law concerning legislative power, can an ultra vires law be identified. Given the classification of legislative authority in the present day, only by-laws and regulations may be made ultra vires. Laws made beyond the scope of the power allowed are unconstitutional. However, the judiciary can only reject to apply ultra vires regulations but not ultra vires by-laws. The decision made by a reviewing agency that abrogates an ultra vires law shall have some retrospective effect: criminal cases shall be retried, and civil litigation and administrative proceedings shall be immediately “frozen up.”