嶺南中藥材保護立法的疑難、理論及實踐

The Theory and Practice Regarding of Legislation on Protection of Medicinal Herbs in South China

新近出臺的《廣東省嶺南中藥材保護條例》率先在全國對中藥材進行了立法保護，首創性地推出了符合廣東地方實際且頗具嶺南特色的一系列制度，可謂地方推進科學立法、民主立法、精細立法的一次生動有益的實踐。然而，法規的制定過程卻充滿了諸多疑難和障礙，例如，人大如何主導立法？在缺乏上位法的情況下如何立法？立法需求眾多如何調整？如何突出重點做好制度設計？如何規範釐清部門職責？如何確保資金保障到位？等等。針對上述問題，法規起草採取了人大主導、多方參與的工作機制，牢固把握中藥材產業鏈前端保護、借助多重質量控制機制、突出“一筆保護資金、兩塊保護基地＂等關鍵措施，以最新的立法理論為指導，拿出破除難題的方案，針對問題立法，力求立法解決問題，相關制度設計及立法經驗殊值參考。

The Regulations of the Protection of Medicinal Herbs in the South China, which is released recently by Guangdong provincial government, is the first case establishing legislative protection for medicinal herbs. This regulation puts forward a series of systems that matches local reality, which serves as a lively case of local government to put scientific legislation into effect. Nevertheless, there are so many difficulties and obstacles during the process of legislation. For example, how can the National People's Congress lead legislation? How to establish relevant laws in the absence of higher norms? And how to standardize the responsibility of different department? As for the several problems above, the medicinal herbs protection regulation adopts a working mechanism during the setup process. It focuses on fore-end protection of herbs industry chain, while highlight several key steps like 'one protection fund, two protected bases', with the help of multiply system on quality controls. Moreover, under the direction of the recent legislative theories, the regulation targets the difficulties and then puts forward powerful scheme to solve it. Therefore, its relevant system design and legislation experience contains a lot of knowledge that worth recommending.