國務院的憲法地位

國務院的憲法地位形成於1954年憲法，也體現於現行《憲法》第85條。“中央人民政府”是國務院的概括性地位，系指國務院可對內對外代表國家，但不能由此推導出國務院享有概括性的統治權。作為“最高國家權力機關的執行機關”，國務院負責執行最高國家權力機關的意志，接受其監督，且不具有任何實質的反制手段，但這也並不意味著全國人大是國務院的上級機關。作為“最高國家行政機關”，國務院行使行政權，但並非行政權都歸屬於國務院；國務院領導的國家機關都是行政機關，所有的行政機關也應當實質性地接受國務院的領導。國務院的職權源自憲法和全國人大及其常委會的授予，“行政”只能是集合性概念，對“行政”採取消極說的界定並不妥當。在最高國家權力機關的執行機關與最高國家行政機關的關係上，應當首先確定應由最高國家權力機關決定的領域，國務院在非執行的領域可以享有一定的自主空間。雖然不能從國務院的憲法地位匯出國務院的具體職權，但它能為國務院的許可權劃出一定的範圍。

The constitutional status of the State Council was formed from the Constitution of 1954 and is also reflected in the Article 85 of the current Constitution. The Central People’s Government of China is the recapitulative status of the State Council. Therefore, the State Council represents the People’s Republic of China, but the general sovereignty of the State Council is not derived from the term ''Central People’s Government''. As the executive department of the highest authority, the State Council is responsible for enforcing the will of the highest authority and is under the scrutiny of the highest power department without any substantive countermeasures. However, it does not mean that the NPC is the superior of the State Council. As the highest organ of state administration, the State Council exercise the executive power of the state, but not all executive powers reside in the State Council. State organs which are led by the State Council are administrative agencies, as all agencies have to accept the leadership from the State Council substantially. Since the power of the State Council is derived from the Constitution and the NPC and its Standing Committee, the ''administration'' could only be a collective concept and is not suitable to adopt the negative concept of the ''administration''. In the relationship between the executive department of the highest power department and the highest organ of state administration, the domain ruled by the highest power department should be identified first, while the State Council has a certain degree of freedom in non-executive affairs. Clarifying the constitutional status of the State Council is helpful to make the jurisdiction of the State Council clear, though it may not illustrate the State Council’s all specific powers.