也論法律的法規創造力原則

Also on the Principle of Legal Norms-Creating Force of Law

二戰前的德國將邁耶的法律保留原則與拉班德的雙重法律概念理論混同在一起處理立法權的許可權分配問題。“法律的法規創造力”這一邁耶行政法首要原則在魏瑪共和國時期被忽視，從行政法教義學體系中消失。戰後日本學界圍繞法律的法規創造力的原意及其與法律保留的關係產生了論爭。通過分析可以發現，法律的法規創造力是一種關於法律效力的判斷原則，它與雙重法律概念理論並不相同。同時，在法律的法規創造力原則沒有確立的情況下，談論法律保留原則是沒有意義的。學說和概念的徹底梳理有著正本清源的意義。我國學界應借鑒這些重要思想，拋棄使用概念混亂的法律保留原則，並在否定行政規範性文件普遍約束力的基礎上構建自己的三層級公法授權規則。

Before the Second World War, Germany confused the theory of double concepts of law advocated by Paul Laband with the principle of reservation of law advocated by Otto Mayer, and dealt with the distribution of legislative powers. The 'legal norms- creating force of law', the most important principle of Mayer's administrative law, was neglected in the Republic of Weimar and disappeared from the system of administrative law dogmatic. After the Second World War, Japanese academic circles had debates about the original intention of the principle of legal norms- creating force of law and its relation with the principle of reservation of law. It is found through analyzing that the principle of legal norms-creating force of law is a judgment principle about legal effect, and it is not the same as the theory of double concepts of law. At the same time, it is meaningless for us to discuss the principle of reservation of law in the event where the principle of legal norms- creating force of law has not been established. A complete combing through the theories and concepts bears the significance of clarifying matters and getting to the bottom of things. Our academic circles should draw on those important thoughts, abandon the principle of legal reservation which has a confusing concept, and construct our own three-level authorization rule of public law on the basis of denying the general binding force of administrative normative documents.