CAJ | 학술논문

宪法修正案第22条第3款中的“法律”系狭义的法律，部门规则无论是规章还是行政规范性文件，政府部门无论是国务院各主管部门还是地方政府的职能部门都不能创制应急征用制度。突发事件应对法第12条与第52条及有关单行法，在应急征用主体上系普通法与特别法间的关系，由此可以确定政府部门并非应急征用主体。政府部门没有应急征用权，就无权细化应急征用条款。规则抄袭或细化并无必要和意义，相反容易导致规则建设资源的浪费和对法律意思的肢解或误解。规则细化或地方规则建设应基于法律的授权或地方自主权。对不允许或无需细化的规则，应加强法律解释和案例指导。
헌법수정안제22조제3관중적“법률”계협의적법률，부문규칙무론시규장환시행정규범성문건，정부부문무론시국무원각주관부문환시지방정부적직능부문도불능창제응급정용제도。돌발사건응대법제12조여제52조급유관단행법，재응급정용주체상계보통법여특별법간적관계，유차가이학정정부부문병비응급정용주체。정부부문몰유응급정용권，취무권세화응급정용조관。규칙초습혹세화병무필요화의의，상반용역도치규칙건설자원적낭비화대법률의사적지해혹오해。규칙세화혹지방규칙건설응기우법률적수권혹지방자주권。대불윤허혹무수세화적규칙，응가강법률해석화안례지도。
According to the law interpretation of the Standing Committee of the NPC and the Supreme Court, the ＂law＂ in Paragraph 3, Article 22 of the Amendment of the Constitution, which says ＂state may, for the public interest, expropriate or take over private property of citizens for public use, and pay compensation in accordance with the law＂, belongs to its narrow sense. Governmental departments have no power to enact a law, thus they have no power to create a reouisition and compensation system. Article 12 of the Emergency Response Law says that governmental departments can be the subject of emergency requisition. However, Article 52 of this Law and other current separate laws of emergency response has no such provision. Compared to Article 12, Article 52 and those current separate laws belong to special laws. Based on the interpretation principle that the special law derogates the general law, governmental departments are not the subject of emergency requisition and cannot make refinements to the emergency requisition article in the Emergency Response Law. As to compensation, those separate laws have different provisions from Article 12. As the provision of Article 12 is more effective to protect the interests of the citizens, the purpose interpretation must be applied to exclude those provisions in the separate laws. Moreover, this interpretation will not override the conclusion that governmental departments cannot make refinements to the emergency requisition article, because no power of requisition means no obligation of compensation, and hence no power to refine the compensation article. The phenomena of refining emergency requisition and compensation articles wltnour power, or even copying rules of higher level law are already quite prevalent. It will lead to the wasting of rule--making resources and the dismemberment of legal provisions, and then destroy the rule of law. The refinement of rules and the local legislation should be based on the authorization of law or local power. To those rules that are forbidden or unnecessary to refine, we should strengthen the work of law interpretation and case guidance. General provisions in law, regulation and rule should also be more scientific and reasonable.