On the Optimization of Structure of Legality Review of Legislation——From the Perspective of Reconstructing the Relationship between Formal Legality and Substantive Legality
Zhou Lin
(Law School， Central China Normal University， Wuhan 430079)
Abstract：According to the existing theories， the review of the formal and substantive legality are “paralleled” with each other， which is manifested in that they are “convergent in function”， “equal in order”， and “integral for each other”， which means that they are duplicative. As a result， the substantive legality review falls into the predicament of redundancy in theory， and is often put aside in practice， seriously affecting the progress of legality review of legislation.To optimize the structure of legality review of legislation requires reconstructing the relationship between formal legality review and substantial legality review. In view of the normative requirements， the prioritized application of formal legality review should be established as the norm of legality review of legislation. The substantive legality review is essentially method of value judgment， characterized by strong subjectivity， purposiveness and value， usually in tension with the normative nature of legality review. In many cases， substantive legality review is a purposive-oriented legislative strategy， which is not suitable to be the norm of legality review of legislation， but only as an exception and supplement. Improving formal legality review standards， optimizing legal interpretation techniques and methods， and perfecting formal legality review techniques can reduce the application of substantive legality review， thereby enhancing the normativity of legality review of legislation and transforming the relationship between the two from “parallel” into “complementary”.
周 林. 论立法合法性审查的结构优化——从形式合法性与实质合法性审查关系的重构出发[J]. 华中师范大学学报（人文社会科学版）, 2024, 63(1): 34-44.
Zhou Lin. On the Optimization of Structure of Legality Review of Legislation——From the Perspective of Reconstructing the Relationship between Formal Legality and Substantive Legality. journal1, 2024, 63(1): 34-44.
2024, Vol. 63 
