小而有度：地方“小切口”立法的策略選擇

Small but Limited: on the Strategy Selection of Small-Theme Local Legislation

“小切口”立法是一種通過凝練立法選題以簡化立法結構、控制條文規模、突出實施性條款比重，增強立法的針對性和可操作性，最終提升整體規制效果的立法思維，具有堅實的理論基礎和現實必要性。但地方在“小切口”立法的過程中卻存在立法選題碎片化、形式一味求簡、內容唯問題化等誤區，這是多重因素複雜作用的結果，如新時期地方立法的空間、角色與偏好的轉變，地方立法部門政績觀與風險意識的偏差，規避“小切口”立法誤區的客觀基礎不足等。“小切口”立法策略的選擇，理論上應圍繞立法是否必要、主題是否適當、方案是否高效三個環節展開，基礎是法不干涉瑣事、立法謙抑論、成本收益分析等理論工具的體系適用；規制路徑上要通過類比“小快靈”全面界定其規範內涵，優化對“小切口”立法策略的程序規制；規範實現上應重視《立法法》的精細化實施、地方立法條例的具體機制建構以及優化備案審查對“小切口”立法策略選擇的彈性引導。

Small theme legislation means the limited theme of legislation, the simpler legislative structure, miniature scale of legislation, more pertinence and maneuverability. Its ultimate goal is the adequate implementation of the regulation. As a principle of legislative work with long-history development, it has become a trend direction recently in central and local regulation, especially the latter. The legitimacy of this principle is based on diverse factors, such as phased theory of rule of law, legislative power allocation between the central and the local, pragmatism thought and so on. It also has many advantages to the practice of rule of law construction, especially for the local legislation. In one word, this principle is important and necessary to the system of socialist rule of law with Chinese characteristics. However, it is also facing to many problems such as pursuing small theme blindly, different standards, and lack of adequate regulation basis. According to the issues mentioned above, this article tries to deal with the scientific standards of small theme legislation, and then describes the framework of system mechanism. Specifically, the alienation of small theme legislation leads to many problems as follows. It is absolutized, blindly simplification, and it makes legislation follows specific problems and policies only. The reasons are multivariate and complex: the new change of local legislation in regulative space, roles and preference, misunderstanding about risk awareness and achievement view of local legislature, objective limitation of the risk regulation of alienation, are all playing key roles. Such problems adverse to giving full play to the expected value of small theme legislation. Regrettably, there is not enough attention to these problems in theory and practice currently. How to build a scientific framework to solve such problems in theory? First of all, there are three important factors for the determination. Is the legislation necessary? Is the theme suitable? Is the legislative plan efficient? There is a progressive relationship between these factors. Then there are also three theories we should pay attention to as the basis, such as ''de minimis non curat lex'', restraint of legislation, and Cost-benefit analysis. Thereby, the process of judgment should be divided into four levels. Firstly, is it should be regulated immediately? Secondly, is legislation necessary? Thirdly, is legislation feasible? Last but not least, is specialized small theme legislation reasonable? So far, we havestructured a preliminary framework in theory. The next and the last issue for this article is how to achieve the theoretical construction through a legal mechanism of regulation. The important points of the legal mechanism contain three aspects. Firstly, it is wise for us to grasp the comprehensive connotation of the small theme legislation scientifically. Comparing with the connotation of Small-Fast-Flexible Legislation is very helpful. Secondly, we should pay enough attention to the programmatic regulation of selected topic of legislation, such as strengthening the controlling effect during the stage after the legislation plan, extending public participation and perfect the functional configuration of small theme legislation between different kinds of local legislation forms. Finally, as the specific mechanism, the keynote of central legislation is refined implementation. Based on complex reasons, it is no need Io write ''small theme legislation'' into Legislation Law as a legal terminology formally, but the interpretations of relative clauses in Legislation Law is more important. Accordingly, the main mission of local legislation is design correlative mechanism according to the interpretations of Legislation Law mentioned above. On the basis of the above, as a complementary factor, optimizing the elastic guiding of the small theme legislation is also indispensable. The communication mechanism and case-guidance system of regulations filing and review provide a suitable reference frame.