紧急权力法及其理论的演变
孟涛紧急权力法及其理论的演变
Evolution of the System and Theory of Emergency Powers Law
期刊名称：《法学研究》
期刊年份：
作者：孟涛
单位：中国社会科学院法学研究所
中文关键词：紧急权力法;紧急权力理论;紧急权力模式;紧急状态
英文关键词：emergency powers law;theory of emergency powers;model of emergency powers;emergency state
中文摘要：
紧急权力法律制度是一种内在矛盾的组合，其古代形态是古罗马专政制度和中止一般执法活动制度，近代形态主要是戒严法和围困状态法，现代则以紧急状态和紧急权力的规范形式兴盛于全球。西方的法律与紧急权力理论有例外型和规训型两类，前者主张紧急权力居于法律之外，后者主张紧急权力应受法律的充分规训。法律与紧急权力共有五种理论模式：调适、例外法、惯常、政治动员和权威专政。除惯常模式以外，其他四种模式都在中国出现过。中国现行紧急权力制度遵循政治动员、调适和例外法三种模式，未来发展是建立融合政治动员和例外法模式优点的调适模式制度。
英文摘要：
Emergency powers conflict with the modern legal system. Emergency Powers law is a combination of internal contradictions, which takes its earliest forms of Dictatura and iustitium in ancient Rome, the modern forms of martial law in Anglo-American law system and the law of state of siege in civil law system, and the present forms of emergency laws and provisions worldwide. And the adjusting range of emergency powers law system has expanded from the war and civil strife to economic crisis, natural disasters and other accidents.The western theories on law and emergency powers can be classified into two types, that is, the exception theory and the discipline theory. The former, including the necessary theory and the theory of prerogative, claims that emergency powers live outside the law. While the latter claims that emergency powers should be disciplined by the law, which includes the theory of commissarial dictatorship and sovereign dictatorship, the theory of constitutional dictatorship, the theory of absolutism, relativism and liberalism, and the model of accommodation, extra-legality and usualness. However, these theories neglect the practice of emergency powers law in socialist countries and authoritarian countries, who have provided two other models, i. e., the model of political mobilization and the model of authority dictatorship.Emergency powers law system in China conformed to the model of political mobilization from 1949 to 1978. The model of accommodation arises after 1978 with many emergency laws. The decisions made and orders issued by the government in response to an emergency should be submitted for record to the standing committee of the people's congress in the corresponding level. The model of extra-legality develops rapidly after 2003 with millions of emergency plans. Public security incidents are governed by various documents which are regarded as unwritten law. Future development of the emergency powers law system in China should comply with the model of accommodation and absorb the advantages of the model of political mobilization and the model of extra-legality.
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