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传统观点认为,行政立法有悖于分权理论,它是一种“不幸而又不可避免的祸害”。然而,虽然行政立法在理论上难以成立,但实际上行政立法在实践中是不可或缺的。各国行政立法数量及其作用就足以证明其存在和发展的合理性和必然性。但问题是,行政立法实践也暴露了诸多问题,面对这些问题,各个国家并没有简单的否定行政立法,抑或是逃避这些问题,而是通过制定相关的协调机制,确保行政立法的健康发展。我国学术与法律实务界应借鉴行政立法的国际经验,重视行政立法,并通过相应制度的完善,促成行政立法权的健康发展。为此,本文提出三个行政立法的控制立法建议:1、加强权力机关对行政立法授权的控制;2、完善行政机关的自我监督体制;3、确立司法机关对行政立法的审查制度。
The traditional view is that administrative legislation runs counter to the theory of separation of powers and is an “unfortunate and inevitable scourge.” However, although administrative legislation is difficult to set up in theory, in practice administrative legislation is indispensable in practice. The quantity and role of the administrative legislation in various countries are sufficient to prove the rationality and necessity of its existence and development. But the problem is that the administrative legislation practice exposes many problems. Faced with these problems, all countries do not simply negate the administrative legislation or evade these problems. Instead, they make the relevant coordination mechanism and ensure the healthy development of the administrative legislation. The academic and legal practitioners in our country should learn from the international experience of administrative legislation and attach importance to the administrative legislation. Through the improvement of the corresponding system, the administrative and legislative power should be promoted to a healthy development. To this end, this article proposes three legislative proposals for the control of administrative legislation: 1, to strengthen the authority of the administrative and legislative authority control; 2, improve the self-supervision of the executive authorities; 3, the establishment of judicial review of the administrative system.