权力缺席与权力失约--当代中国的公法漏洞及其救济

文章认为,当代中国法律中存在着明显的权力缺席现象.形成这一现象的原因既有观念的,也有体制的.观念的原因主要有国家主义法律观、强制主义法律观和管理主义法律观的负面影响;体制的原因则指我国现行立法体制(特别是由有关政府部门起草与自身利益相关的法案)的弊病.权力的缺席是导致权力失约的重要原因,这主要表现为权力缺席使控权对象缺失,使权力制约失去了规范依凭,同时也使权力在法外推定有了"必要"和可能.而权力一旦在法外能够推定,则意味着权力扩张和权力失约成为必然.为此,作者提出要真正控权,就必须注重公法建设的主张.公法倘要克服权力缺席现象,需强调控权的立法宗旨、确权的立法内容、护权的立法技术和越权的法律责任.

Absence and Lack of Restraint of Power--The Loopholes of Public Law in Contemporary China and the Remedies

This article holds that there is an obvious phenomenon of absence of power in the contemporary Chinese law. The causes for this phenomenon have to do with both the concept and the system. Conceptual causes basically consist of negative effects of the concepts of nationalist law, compulsionist law and managerialist law. System causes refer to the disadvantages of current legislative system (especially the acts drafted by relevant government departments that concern their own interests). Absence of power is a major cause of lack of restraint of power. And it is mainly represented by the absence of object for power control as a result of absence of power, which leads to the lack of normative bases for checks of power and, in the meanwhile, also makes possible the "necessity" and possibility of presumption of power beyond law. Once power can be presumed beyond law, expansion and lack of restraint of power become inevitable. Thus, the writer proposes that real control of power builds on the construction of public law. Public law has yet to overcome the phenomenon of absence of power and emphasize the legislative purpose of power control, the legislative content for the determination of power, the legislative techniques for the safeguard of power and the legal liabilities for ultra vires.