“设区的市”立法赋权的理论定位与行权的对策建议

赋予全部"设区的市"立法权,既是渐进式的纵向分权的体现,也是处理中央与地方关系的最优路径。"设区的市"拥有立法权并非"违宪",而是宪法规范对社会的滞后性反应,从规范与事实的龃龉角度可以作出解释。《立法法》对立法权限的"等"字规定,应从立法实践与草案三稿变化得出"等外"之义,而对"城乡建设与管理"的内涵应从短期与长期两个方面作出理解。此外,新修订的《立法法》通过备案审查制度在制度框架内化解了"较大的市"立法事项收缩与法定事项以外的法规效力之间的张力。在"设区的市"行权问题上,未来的对策应从设置立法机构、强化人大对立法的主导地位等角度考虑,通过多层次的审慎举措推动地方立法实践的良性发展,使之契合国家治理的导向和良法善治的要求。

The Theoretical Orientation and Exercise Suggestions of the Legislation Empowerment of the "Cities Divided into Districts"

That "cities divided into districts" have legislative power is not only the embodiment of the gradual vertical decentralization, but also the best way to deal with the relationship between the central and local governments. It is not in the form of violation of the Constitution, but the lag reaction to society of the Constitution, which can be explained from the disagreement point between the standard and the fact. The meaning of provision about legislative authority of Legislative Law should be "external" from the perspective of legislative practice and the change of three drafts, and the connotation of "urban and rural construction and management" should be understood from both the short-term and long-term aspects. More than that, through the record review system, the new revision of Legislative Law defuses the tension between the contraction of legislative matters of "larger city" and statutory effects other than statutory matters under the institutional framework. On the issue of exercise of power, a series of measures should be adopted to promote the healthy development of prudent practice of local legislation, such as setting up the legislative body and strengthening the leading position of the NPC,so as to promote the sound development of local legislative practice and make it conform to the guidance of state governance and the requirements of good law and good governance.