The Nature and the Application of NPC Standing Committee's Decisions with Abstract Legal Proposition
- 法学院－已发表论文 
全国人大常委会的部分决定带有"抽象法命题"的意味,从而与立法有所通联。"抽象法命题决定"的性质如何以及能否被司法机关适用是需要直面的问题。就其性质而言,决定的主体和程序是判断其是否属于法律的唯一标准,但不属于法律的决定也可能被历部宪法授予的全国人大常委会的制定法令、解释法律、修改法律、补充法律、批准条约的职权所涵盖。就其可适用性而言,司法机关几乎不加甄别地将这类决定视作可适用的规范,但在应然层面上,并非所有决定都可被适用。"抽象法命题决定"之所以勃兴并呈现出法规范的面相,原因包括转型期宪法对全国人大常委会授权不足,立法者持守积极慎重的立法理念,全国人大常委会权力结构的复合性,以及司法条件的局限性。A portion of decisions issued by the NPC Standing Committee associate with legislation due to the fact that they possess the character of abstract legal proposition. The question of what is the nature of "the decision with abstract legal proposition"and whether it could be applied by judicial authorities are expected to respond. As for its nature,the subject and the process are the sole criteria for judging whether it serves as law.However,those could not be regarded as law might also be absorbed into the power to enact ordinance,to interpret law,to amend law,to supplement law and to ratify treaty authorized by all the previous and the current Constitution. As for its judicial applicability,judicial authorities almost treat all decisions as applicable legal norms without identification. But at the aspect of"ought to be",not all decisions could be applied. The reason why decisions with abstract legal proposition grow vigorously and present as legal norms is that the constitutions during transformation periods have not authorized the NPC Standing Committee with sufficient powers,legislators have maintained active and cautious concept in terms of legislation,the NPC Standing Committee possesses multiple authorities and the condition of judicial activities are limited.