| The separation of powers is not a complete division of power,but an organ dominates a power,therefore the exercise of a small part of the legislative power by the administrative organs does not violate the principle of separation of powers.The practice of enacting administrative regulations by administrative organs exists in many countries,in some countries,the legislative power of administrative organs comes entirely from the authorization of legislative organs;in the other countries,the legislative power of administrative organs comes partly from the authorization of the Constitution and partly from the authorization of the legislature.In China,the State Council has the power to formulate administrative regulations in specific areas given by the Constitution,and the State Council can also formulate temporary administrative regulations according to the authorization of the legislature.Since the founding of the People's Republic of China,the State Council has been exercising the power to formulate administrative laws and regulations,although the Constitution stipulates that the State Council is the highest executive organ.Until 1982,Constitution empower the State Council to formulate administrative laws and regulations,which made the administrative legislations formulated by the State Council have the legitimacy of the source of legislative power.There are more than650 effective administrative laws and regulations in force.Administrative regulations formulated according to authorization occupy a certain proportion of all administrative regulations,but they also have some problems.In the legislative actionof the State Council,there is a fundamental difference between legislation according to authorization and legislation in accordance with of it own powers.The constitutional basis for enacting administrative regulations under authorization is Article 89,item 18 of the Constitution;the constitutional basis for the legislation according to own powers is Article 89,item 1 of the Constitution.We should distinguish them from the perspective of legislative authority.There are two kinds of authorization to the State Council: general authorization and special authorization.The National People's Congress and its Standing Committee have given the State Council special authorizations three times;the general authorization is scattered in the law.Taking the tax administrative regulations as an example to analyzing the implementation of special authorization by the State Council.Taxation is the infringement of citizens' property rights,and paying tax is also the basic obligation of citizens stipulated by the Constitution.The special status of taxation determines that it must be regulated by law.It is the premise of enabling the State Council to legislate.Judging from the authorization of the National People's Congress and its Standing Committee,although it can be inferred from Article 89,item 18 of the Constitution that the National People's Congress and its Standing Committee can authorize the legislative power to be exercised by the State Council,but the authorization is not unlimited.Taxation is not suitable for authorizing excessively to the State Council to formulate administrative regulations because of its particularity.The principle of the people's sovereignty,the principles of human rights and the principle of separation of power jointly determine that the authorization must conform to the principle of clear.The two special authorizations are a blanket authorization model.Judging from the implementation of the State Council,since it got the authorization,the tax administrative regulations enacted by the State Council have accounted for most or even the vast majority of the tax legislation in the 30 years.The temporary regulations have been implemented for decades,and the State Council abuse of the authorization obtained.It can be seen that there many problems in the tax authorization legislation.Therefore,tax administrative regulations are unconstitutional both from theperspective of authorization and from the perspective of the implementation of authorization.Taking the regulation on Expropriation& Compensation on the Houses Which Are Built on State-owned Land as an example to analyzing the implementation of general authorization by the State Council.The essence of house collection is the levy of private property,which belongs to the matter to be prescribed by law.It is the premise of the legislation of authorization.Judging from the authorization of the Standing Committee of the National People's Congress,the Standing Committee of the National People's Congress has the power to authorize the State Council to formulate administrative regulations on collection in advance,but the general shortcomings of the authorization by laws is that they do not conform to the principle of clarity.Judging from the implementation of the State Council's,the State Council has not exceeded its powers in legislation,but the process of administrative regulations formulation is not open enough,public participation is small,and the Regulations on Housing Expropriation and Compensation on State-owned Land also fail to maximize the protection of civil rights and achieve relative fairness in compensation.The Regulations on Housing Expropriation and Compensation on State-owned Land are also unconstitutional from the perspectives of authorization and implementation.Generally speaking,in order to eliminate the unconstitutional suspicion in the administrative regulations enacted by the State Council according to the authorization,we must take action on both the authorization and the implementation of the authorization.When authorizing,the NPC and its Standing Committee should follow the principle of clarity of authorization,delimit the authorization forbidden zone,and stipulate the principle that the State Council should follow in accordance with authorized legislation.The State Council should change its legislative concepts,make legislation public and democratic,and maximize the protection of civil rights. |
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