中國大陸民主化可行性之研究---全國人大常委會立法功能轉變之分析

Abstract

透過本研究對中共全國人大常委會立法權限及立法程序中提案、審議過程、表決與公布之比較分析,吾人可發現做為中共政治體制中立法主體的全國人大常委會存在以下諸項問題:一、立法權限尚待明確;二、委員自主性不足;三、提案範圍仍有待明確化;四、提案程序性規定仍不夠完善;五、反對票偏低等問題。< 各專門委員會會議在立法過程中的功能欲予強化,可增設若干委員會,例如教科文衛委員會即可予以再細分為兩至三個委員會,加強其分工的專業性。中共目前採取由法律委員會統一審議的做法亦應予以變革。在委員長會議的職權方面,權力顯得過於集中,易損害委員的權益。但委員長及委員長會議的功能擴張尚非癥結所在,與其他國家相較之下,中共人大常委會缺乏政黨之間的折衝妥協,且反對意見組織化能力薄弱。< 人大常委會立法功能的強化、組織分化與制度化程度提昇,有利於其民主化的進程,主要可表現在以下幾個方面:(1)對法案審議功能的增強,可逐漸形成對行政機關最基本的制衡力量。(2)增加對法制的信心。常委會自主性若能持續升高,對於法律的權威性應有正面的效果。(3)增加政治體制的穩定性。有助於政治改革由現行體制出發,而非是震盪式的巨幅改革。(4)累積議會經驗並培養議事人才,利於造成折衝妥協的特質

This study intends to analyze the process of enactment and its related issues at the Standing Committee of the National People`s Congress (NPCSC) of the People`s Republic of China. Subjects covered include the initiation, examination, the voting and promulgation of an act before it becomes a law in the NPCSC. The study concludes that (1) the scope of enactment should be further defined; (2) legislative committees have been provided with insufficient powers to effectively exercise its autonomy; (3) the powers to initiate and introduce an act need clarification; (4) the procedural regulation and institutionalization of the enacting are still in a preliminary stage; (5) visible oppositions are still in shortage.< This study further concludes that for the legislative committees to function properly the creation of subcommittees might be a solution. For example, the functions of the Committee for Education, Science, Culture, and Health can and should be further relegated to three or four subcommittees so that more expertise can be brought into the functionally diverse institution and differentiation and professionalism can be implemented and introduced. The current practice that the Committee of Laws is given unified powers in examining all drafts of laws should also be altered. The powers of the Speaker, exercised through the Speaker`s Meeting, are too centralized at the expense of the powers of the committees. Compared with the national legislative institutions at other countries, the NPCSC lacks the mechanism of inter-party negotiations, henceforth, the organized opposition is obviously not existent.< On the other hand, the strengthening of the legislative powers, the differentiating of the organizations and the increasing of the institutionalization at the NPCSC, all in relative terms and made in the 1980`s in the wake of the grand effort of the PRC to revigorate its legal system, ruined during the Cultural Revolution, would inevitably and gradually lead, in combination with other factors, to an ultimate democratization in the mainland. First, the strengthening of the powers in examining legislative acts might gradually lead to an increase of the checking and balancing powers to the administrative branch. Second, the augment of the autonomy of the NPCSC would cultivate respect for legal authority in general and raise the level of legality accordingly, something the Chinese in the mainland needs the most at the current stage. Third, an incremental approach to the political reforms starting from the representative organs, however superficial, would have stabilizing effects in the process of political transformation bounded to happen sooner or later. Forth, the legislative experience accumulated in the process would be beneficial to the training and fostering of politicians with a minimal knowledge of lawfulness and democracy