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立法机关与行政机关在立法上的权限分配是一个经典课题,不同的宪法体制可能有不同的解答。在行政机关缺乏民主正当性、且定位为立法机关的执行机关时,不宜承认其可以直接依据宪法制定法规范。法律的法规创造力原则主张,凡含有法规(法律事项)者,均由法律创造。随着立法机关地位的强化,法律事项的范围也在扩大,法规的界定亦随之扩张。从我国宪法而言,应将一般性规范作为判断法律事项的标准。国务院只能在宪法规定的职权范围内根据法律制定执行性的行政法规,或者在法律的专门授权时制定补充性、创制性行政法规。如此,方能在人大制度之下理顺法律与行政立法之间的关系,维护发端于人民主权的自上而下的法秩序。
The legislative authority and the administrative authority in the legislative authority is a classic issue, different constitutional system may have different answers. In the absence of democratic legitimacy in the executive branch and its position as the executive organ of the legislature, it should not be admitted that it can directly rely on the constitutional norms of the constitution. Laws and regulations The principle of creativity advocates that all laws and regulations (legal matters) are created by law. With the strengthening of the legislature’s position, the scope of legal issues is also expanding, and the definition of laws and regulations also expands. In our country’s constitution, the general norm should be used as the criterion to judge the legal issues. The State Council may only formulate implementing administrative laws and regulations in accordance with the law within the scope of the powers prescribed by the Constitution or formulate supplementary and creative administrative laws and regulations when it is specifically authorized by law. In this way, the relationship between law and administrative legislation can be straightened out under the NPC system and the top-down legal order that starts from the people’s sovereignty can be preserved.