| "Legislative law" article 13 applicable law to adjust authorization shall be legally established,given the standing committee of the National People’s Congress authorized the adjust the power of the law of the State Council,this behavior become a pioneering work in the history of the reform in our country,its significance lies not only in further solve the contradictions of the reform and the rule of law directly,to remove host law obstacles for a new round of economic system reform in our country,It also provides a legal basis for the reform and is conducive to the further development of the reform.However,this is the system itself provisions are not perfect,coupled with many problems in practice,so it is necessary to in-depth study.The first chapter mainly clarifies the basic issues of the application of the law of authorization adjustment,including the conceptual meaning,nature orientation,functional value,etc.,which is the logical starting point of the study.The academic community has not formed a unified understanding of the concept of "temporarily adjusting the application of law".By sorting out and analyzing scholars’ views on the concept of "authorized adjustment of the application of law",it can be found that some core connotations of "authorized adjustment of the application of law" have always been running through it:In terms of purpose,it has the need to adapt to the requirements of reform practice and is the embodiment of the initiative of legislation to adapt to the needs of reform and development.The realization of major reform is based on the law,and the whole process of reform is always brought into the track of rule of law.Second,in terms of time,it is temporary,experimental and transitional.Thirdly,in terms of space,it is regional and local.Fourth,in terms of the results,"authorized adjustment of the application of law" belongs to the preparatory stage of the experimental nature of legislation,to accumulate experience for the formal formulation and revision of laws.The overall concept of "authorized adjustment of the application of law" can be preliminarily outlined."Authorization adjustment applicable law" the function of the value embodied in the coordinated reform of tension between the revolutionary and the stability of law,realize the legislative initiative to meet the needs of reform practice,to ensure that major reform Yu Fayou according to,meet the demand of reform affairs to the specification,in legislation,legislative conditions are ripe and pressed for time,legislative experience ill-prepared situation,Make up for the shortcomings of the law.The nature of "authorized adjustment of law application" belongs to the new way of exercising legislative power.The second chapter,using the empirical research method to investigate authorized to adjust the present situation of the applicable law,is to find the key step in the problem of the existence of the system,adjust the applicable law for authorization of systemic specification provides the basis,based on objective elements,permissions,space factor,time factor,the consequence factor,etc,summarizes the authorization adjustment of the operation situation of applicable law.From the perspective of the authorized purpose authorized purpose set is too general and abstract authorization purpose can not only be regarded as a kind of pledge clauses,it shows the intention of the authorities,in addition to the express test should also be the direction of the implementation rules and expectations may achieve the effect,a clear mandate to rules for evaluation and test may ultimately to provide objective reference.From the perspective of the fields involved in the authorization decision,in practice,the authority of the authorized subject goes beyond the administrative management and other fields stipulated in Article 13 of the Legislation Law,and extends and deepens to the judicial,political,national defense and military fields.When the Standing Committee of the National People’s Congress adjusts and applies basic laws,it has the problem of exceeding its powers.From the perspective of the term of authorization,the general required period and extension of the pilot reform of authorization should be investigated.In practice,the ways and times of postponement are different,and there is no unified standard.Look from the scope Angle of pilot area,inspect the rationality of the regional distribution of pilot reform.From the perspective of the elements of authorization consequences,it mainly investigates the actual implementation of the reporting system and the transparency of the reporting system.The third chapter explores the problems existing in the system of authorization adjustment of law application.Authorization lack of clarity: first,the term of authorized pilot reform is not clear,the number of extensions and the maximum term lack of legal regulation;Second,the division of powers of the NPC and its Standing Committee is not clear.In practice,the Standing Committee of the NPC is the organ that makes delegated decisions,which involves the adjustment and application of basic laws.The Standing Committee of the NPC has the problem of exceeding its powers.The lack of perfect supervision mechanism is manifested as the lack of legal regulation of the filing supervision mechanism,unclear filing time,unclear examination standards,unclear punishment rules,and the filing is a mere formality.The reporting system is not perfect,the form of the report lacks legal regulation,the transparency of the reporting system needs to be improved,and the responsibility to fulfill the reporting obligations is delayed.The evaluation mechanism is absent,the evaluation subject is not clear,the evaluation standard is missing,the evaluation period is not clear and so on.The fourth chapter proposes a solution to the problem,and the first step is to clarify the authority of the authorized subject and the term of authorization.Defining the division of powers of authorization,using the method of legal interpretation,enlarging the interpretation of the word "etc" in "administrative management and other fields" as stipulated in Article 13 of the Legislation Law,that is,matters of equal importance to administrative management,listing the scope of matters that are prohibited from authorization in reverse,and following the principle of legal reservation.Matters concerning state sovereignty,the basic organization and system of the state,and the basic rights of citizens are excluded from application.At the same time,if any adjustment or application of the basic principles of the basic law is involved,the NPC shall authorize the adjustment accordingly.Secondly,improve the supervision mechanism.About filing system shall include the record of organs,for the record,the time limit for the record of the review process as well as the legal liability,etc.,you may refer to filing deadline set administrative rules and regulations for the record for the duration of 30,the record-filing authority fails to perform the obligations for the record,the record of authorities to accept can be forced to put on record,and make administrative sanctions on those responsible.At the same time,the organs that have accepted the record shall be empowered to reject the record and give full play to the supervisory function of the record system.On the improvement of the reporting system,the establishment of mandatory reporting system,clear reporting time nodes,clear responsibility and punishment rules.On the establishment and improvement of the effect evaluation mechanism,the construction of the National People’s Congress led by the active participation of all parties in the scientific and democratic evaluation institutions,quantitative evaluation standards,the establishment of evaluation standard gradient system,the establishment of regular evaluation system.In conclusion,based on the analysis of authorization adjustment nature of the concept of legal application,the function value,the current situation of the practice,from enhanced clarity and perfect authorized supervision mechanism two aspects,adjust the applicable law provides a set of institutionalized for authorization scheme,in order to adjust the applicable law for standard authorized activities to provide help. |
