挑戰與升級：《立法法》修訂後政府規章的發展

Challenges and Promotion: the Development of Government Rules After the Revision of Legislation Law

修訂後的《立法法》對政府規章的立法範圍、立法權限做了較大調整，導致政府規章立法空間壓縮、創新難度變大。《立法法》關於政府規章的規定存在法律概念不清晰、未充分考慮較大的市的實際立法需求、未與《行政處罰法》等法律相銜接等問題，同時立法要求變高、利益博弈變難，使得各地出現了將政府規章等同於規範性文件、不願意申報政府規章專案等現象。然而，政府規章仍屬於立法體制中的重要範疇，立法需求較大，同時《立法法》的修訂客觀上也為政府規章轉型升級提供了契機。在此背景下，政府法制機構務必調整立法思路，樹立政府規章“執行性立法、授益性立法、內部性立法＂的功能定位，通過加強政府法制機構主導、加強立法專案論證、加強公眾參與等方式，打造政府規章“升級版＂。

The revised Legislation Law has changed much on the legislative scope and authority of government rules, resulting in the compression of legislative space and the increasing difficulty in innovation. The legal concept of government rules in the Legislation Law is unclear, and it does not fully consider the actual needs of large cities, and does not dock with the Law on Administrative Penalties. At the same time legislative requirements become higher, and the interests game escalates. Therefore, some phenomena appear, such as in some regions government rules are considered equivalent to regulatory documents, and local governments are unwilling to apply for government rules projects. However, the government rule is an important aspect of legislative system, and the legislative demand is large. Meanwhile, the revision of Legislation Law also provides an opportunity for the transformation and escalation of government rules. In this context, the legislative affairs office of the government should adjust the idea of lawmaking, and establish the functional orientation of executive legislation, beneficial legislation and internal legislation, and build the upgraded version of government rules by enhancing the leading role of legislative affair office of the government, strengthening the demonstration of legislative projects, inspiring public participation and other ways.