《立法法》修改視野下監察法規的適用研究

Research on the Application of Supervision Regulations in the View of the Amendment of Legislative Law

《立法法》規定監察法規制定權之後，監察法規如何融入我國法律體系成為當前的重要課題。從適用規則、裁決機制和不相抵觸原則三個方面，可以在立法法基本框架下初步構建監察法規的適用體系。監察法規的位階居於法律、地方性法規之間，不高於行政法規，其異位法衝突採取效力優先規則;地方變通立法不違背效力優先，但不符合監察法規的價值取向;對於新舊衝突，需明確其生效要件和溯及既往情形。監察法規之新一般法與舊特別法衝突應由國家監委裁決，並增設程序性規定;即便監察法規與行政法規具有同等效力，仍可能面臨近位法衝突，其紓解有賴於建立人大裁決、“府-監”協商和聯合制定等制度。監察法規的合憲及合法性審查以“相抵觸”為判斷基準，同憲法和法律相抵觸的規定應無效並予修改、廢止或撤銷，抵觸標準包括形式和實質雙重要素，審查強度需結合具體內容予以類型化區分。本次《立法法》修改為監察法規的實踐探索預留了空間，從我國法律秩序結構的穩定性出發，可在有關備案審查制度的規定中初步明確其衝突解決機制，待未來條件成熟時作整體考慮。

After the Legislative Law stipulates the power of making supervision regulations, how to integrate supervision regulations into current legal system has become an important issue. From the three aspects of applicable rules, ruling mechanism and non-conflict principle, the application system of supervisory regulations can be initially constructed under the basic framework of the Legislative Law. Supervisory regulations rank between laws and local regulations, not higher than administrative regulations. The rule of priority of effectiveness shall apply between supervisory regulations and other legal norms. Local flexible legislation does not violate the priority of effectiveness, but does not conform to the value orientation of supervision laws and regulations. In the conflict between the old and the new, the retroactive situation and effective elements of supervision regulations should be clarified. The conflict between the new general supervision regulations and the old special supervision regulations should be decided by the National Supervisory Commission, and procedural provisions should be added. Even if the supervisory regulations and administrative regulations have the same rank, they may still face the conflict of near law, and its resolution depends on the establishment of the system of the ruling of the National People’s Congress,“government-supervision”consultation and joint formulation. The examination of constitutionality and legality of supervisory regulations is based on the standard of“conflict”. The regulations conflicting the constitution and laws should be invalid and amended, repealed or revoked, and conflicting standards include dual elements of form and substance. At the same time, the intensity of the review should be differentiated according to the specific content of the regulations. This revision of the Legislative Law has reserved space for the practical exploration of supervision regulations. From the standpoint of the stability of China’s legal order structure, the conflict resolution mechanism can be preliminarily clarified in the provisions on the record review system, and it is thus reasonable to leave it for overall consideration in the future until the condition are mature.