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1、论法的总则部分构造( On the construction of general provisionsof law )On the construction of general provisions of lawOfDepartment of law, Peking UniversityOn, the, Construction, of, General, Provisions, as, Part, of, a, LawAs to the structure and arrangement of the content, a law usually consists of three pa
2、rts: general provisions, specific provisions and supplementary provisions. From the general logical order of draft bill, Bill drafters and bill review, considered the first person to meet is the general problem of structure. They need to figure out what the general rule is Is the general rule not an
3、 integral part of the law? What should the general provisions include? In what form should we behave? How should I write it?General meaning and statusThe method is general, to the law has a command of the main provisions of the legislative purpose, or performance, according to the principle of the l
4、aw, relevant legal system or legal system, basic law, application of law and so on, which in the whole law and the specific provisions of annex, corresponding method and article the standard method.First of all, the general rule occupies the leading position in the whole of the law, and it is the sy
5、nthesis of the whole law and the comprehensive content of the whole content of the law. This is clear, legislators, draftsman and bills, I pay attention to: first, the method of program and method related to global content, focus on general principles. Secondly, we should not write or write other co
6、ntents into the general provisions.Secondly, the general provisions are the whole component of the layer, and corresponding to it are the specific provisions, the supplementary provisions and so on. This is a clear, requires legislators, draftsman and bills, the attention to distinguish between gene
7、ral and specific provisions, the provisions at the sametime, also pay attention to the intrinsic link between them as an integral part of the law.Again, in the form of general provisions, but the provisions of some of the content is normative, some non normative, this is clear, legislators, draftsma
8、n and bills, to investigate the general provisions should be included in the normative content, which non normative content, and the right to arrange.In countries where the statute is the main form of law, general provisions are indispensable to general law and the vast majority of laws. This is bec
9、ause the general law and the vast majority of laws need to have the dominant content of the whole law. With it, the whole law has a consistent thing to command it. This kind of commanding thing should only be reflected by general rules. At the same time, from the integrity of the structure of the la
10、w, the scientific nature of the generalprovision is also very meaningful.To understand the general principles are part of the will with the general method, the vast majority of law requires people cannot ignore and abandon the bill drafting principles in the drafting of the bill, the bill will revie
11、w, review in the review and consideration of bills that as a sign to measure the act structure is complete and scientific to have a general.Judging from the current legislative situation in our country, someshould have general laws, but there is no general provision. The organizational law of the Na
12、tional Peoples Congress is an example. The status and content of this law are very important, there are chapters set up, the scale is not small, thisshouldbe established as the general rule of the general law, but this law does not have general provisions. This makes the law not only a lack of a con
13、sistent element, but also with the laws of other relevant state institutions,There are many legislative cases in this respect. On the contrary, some laws do not include the content that should be written into the general provisions in the general provisions, but are arranged in other parts.The gener
14、al content is quite messy, basically there are two reasons: one is indeed each method has its owncharacteristics, the general content is not with the characteristics of the trace: two is legislative research and legislation of backward technology, legislators, draftsman and consideration of this has
15、 not attracted due attention. As far as the general provisions of Chinese law have been concerned, the latter isthe main reason. Therefore, it is necessary to change the mess situation, strengthen the study of general principles, improve the legislative technical level, and pay great attention to th
16、e scientific generalization of the general provisions.Three, the form of general provisionsThe general provisions of the law have the distinction between the express general provisions and the non express general provisions, but not all in the General Provisions two words for the title, clearly expr
17、essed in the law.Generally speaking, the general provisions appear in the structure of laws which have a certain scale and set a chapter. In general, there is no explicit general rule in the construction of simple laws.Express the name of the general principle, the most commonly known as the general
18、 provisions. In addition, also known as the master, basic principles, General Provisions etc.For example, the Peoples Republic of China constitution, the first chapter of master is the general principles of law.Non explicit general provisions, i.e., no title general, generally appear in the structur
19、e of simple laws, or appear in the structure of a law without a chapter. There is such a situation in legislative practice: some laws contain both the setting of the chapter and the contents of the general provisions, but the content of the general provisions is not expressed in the form of explicit
20、, but expressed in the form of non express. For example, the rules of procedure of theNational Peoples Congress and the rules of procedure of the Standing Committee of the National Peoples Congress, respectively, have abruptly written 1 and 2 general principles before the first chapter, without gene
21、ral headings. This situation needs to change.No matter whether the express or non express provisions are general, they should be set at the beginning of the law. Exceptions can only be made before the general rules, as well as the preamble and the preamble. In legislative practice, some laws put the
22、 contents of the general principles, such as the validity of law and the application of law, into the tail of the law. This situation should be improved step by step with the improvement of legislative technical level.In some law, in addition to a general chapter specifically supernumerary, in other
23、 relevant parts, chapters and sections are arranged in such as general and General Provisions, general principles. This is particularly reflected in the practice of civil legislation, for example, the French Civil Code and German Civil Code, peoples Republic of China Law, the PRC Civil Procedure Law
24、 of the relevant code, chapter, there is such a general and General Provisions general principles of gas. This kind of general and General Provisions, general principles, can be regarded as the relevant parts of the general, not as a general law, has a leading role in different degree of law of the
25、relevant parts, but on the whole method without guide.Four, the general provisions of the writingMyview is that at least we should pay attention to the following aspects: (1) pay attention to the completeness of the general structure and scientifically arrange the system and content structure of the
26、 general provisions.The first to write the legislative purpose and basis; the basic principles and writing, and then if necessary to write about the legal system or basic legal system; applicable scope and method then writing; finally, if there are other necessary contents expressed in general, is t
27、o write the contents of this part. The content of the general provisions can not be too complicated or too simple, and the general provisions of the samelaw should be coordinated in the system and content as much as possible, and the general provisions should not be miscellaneous, nor should the gen
28、eral content be included in the general provisions. (2) pay attention to the scientific nature of general provisions. It should be expressed in an express manner and expressed in an express manner. It should be expressed in non - explicit form, and the contents of non - explicit general principles s
29、hould be put together. Explicit and non explicit general provisions should be placed at the beginning of the structure of the whole law. (3) pay attention to the specific contents of the general principles. Here are the following aspects.First, legislative purpose.The term legislativepurpose here re
30、fers to the outcome thatthe legislators wish to achieve by means of legislation. The purpose of writing legislation needs attention:(1) position should be correct. The provisions of legislative purpose should generally be the first main body of law. In cases where the name of the law requires the pr
31、ovision of a special provision, and in other circumstances, the object clause may be moved into second or even third clauses.(2) format should be standardized. Onthe one hand, the purpose of legislation should be for the sake of The formulationof this Law shall be written in the form; on the other h
32、and, the purpose of legislation shall be expressed in the form of provisions. On the other hand, there are some problems in the practice of legislation. The purpose of some laws is not expressed in the form of a clause, but a paragraph is written before the first to express the purpose of legislatio
33、n. This kind of fault mainly exists in the administrative regulations and administrative regulations.(3) order should be reasonable. Whenthe purpose of legislation has manycontents and needs to be expressed in manysentences, it should be arranged from concrete to abstract, from direct to indirect, f
34、rom near to far, only in a few cases. Most avoid having the right sequence to jumble together the multiple items into a single clause.(4) the content should be practical. Do not speak empty words, cliches, dont put the purpose content written to the provisions to. In this regard, many articles of pu
35、rpose exist problems, and the drafters often like to write objective provisions in order to protect the needs of socialist modernization.(5) in the general provisions of the laws, regulations and regulations, there is no need to write special enactment of this Law, but only to formulate this law. Th
36、e law may be written in the provisions of the object only if it is necessary to emphasize it. In legislative practice, the need to change the special enactment of this Law in the absence of necessary circumstances needs to be changed.(6) any law has legislative purposes; in general, it should be use
37、d to form the provisions of the law. But so many China are not written to the National Peoples Congress provisions, such as the organization law, local peoples Congress and local government organization law, National Peoples Congress and the local peoples Congress election law, State Council Organiz
38、ation Law, court organization law, law, procuratorate organization rules, the National Peoples Congress National Peoples Congress Standing Committee Rules etc.,An aimless clause. Change this situation should also pay attention to the problem.Second, the legislative basis.This meansthat the legislato
39、r lays downthe grounds and grounds of a certain law. We should pay attention to the legislative basis of writing:(1) in modern society, laws, regulations and rules must be based on the exception of individual laws. In China, the formulation of laws should take the constitution as the basis; theformu
40、lation of administrative regulations to be formulated according to the Constitution and law; department administrative regulations to the laws and administrative regulations as the basis; the formulation of local regulations to the specific circumstances of the administrative area and the actual nee
41、ds and not the sameaccording to the constitution, laws, administrative regulations and the local regulations conflict; the formulation of local administrative regulations in the laws and administrative regulations to formulate autonomous regulations (autonomous regulations and separate regulations)
42、to the political, economic and cultural characteristics of the local ethnic groups according to the. This is Chinese chinasconstitution, local organization law, the law on regional ethnic autonomy as determined by the system, therefore, in China, the legislation must have a basis to ensure the legit
43、imacy of their own, so it is necessary to specify the method in law legislation according to. In practice, there are no legislative grounds, provisions or content in manylaws, and this situation needs to be changed.(2) in general circumstances, the statutory basis should be the basis of legislation.
44、 In some cases, it can also be based on the presumption that it is the basis of legislation. For example, according to the provisions of the organization of local peoples Congress and local government law, the development of local administrative regulations in the laws and administrative regulations
45、 as the basis, but because the local government is the executive organ of the organs of state power, so local regulations can also be used as a presumption of administrative regulations according to local legislation. The current local peoples Congress and local governmentorganization law does not r
46、equire that the formulation of local administrative regulations should be based on local regulations at the same level. It is a loophole, which should be improved.(3) the authorization law should be based on authorization. For example, the three session of the six National Peoples Congress on Author
47、izing the State Council to make can be in terms of economic reform and opening up develop interim rules or regulations of the State Council Legislative Decision, according to the authorization, must be stated in the law according to the provisions of this legislation is authorized. At present, many
48、have made regulations according to the authorization method, often do not write according to what mandated by the covenant, make it difficult to see this kind of authorized and non authorized by law in the legislation according to the law, and the effect of different grade etc.This situation needs t
49、o be improved.(4) if necessary, the law can be used to specify what experience the law is based on. But in most cases, you cant write that kind of content. If a large number of laws, regulations and rules are formulated on the basis of experience, the process of reversing the general lag of Chinas legislation will be slow.(5) do not say in general terms that this law is enacted according to th