|
|
|
| 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”.
|
|
Received: 22 January 2024
|
|
|
|
| [1] |
Liu Chengjie. Research Outline on the Legislative Innovation and Practical Path of Vocational Education Law[J]. journal1, 2023, 62(4): 182-188. |
| [2] |
Zheng Weihua. Problems and Countermeasures of the Local Legal System from the Perspective of Urban Governance Modernization[J]. journal1, 2022, 61(2): 21-. |
| [3] |
Li Kewu Nie Sheng. On the Legislative Construction of the Incentive Mechanism for Using and Exiting of Public Rental Housing in China[J]. journal1, 2021, 60(2): 71-81. |
| [4] |
Duan Binbin. What Kind of Law Does Chinese Education Need？[J]. journal1, 2020, 59(6): 169-178. |
| [5] |
Ke Jian Wang Min. On the Establishment of the Legislative Purpose of The Yangtze River Protection Law——Taking Water Security Value as a Starting Point[J]. journal1, 2019, 58(6): 87-94. |
| [6] |
Chen Yehong Xiang Huaping. On the Defects and Corrections of the Legislation on Requirements for Adopters in China[J]. journal1, 2019, 58(3): 29-39. |
|
|
|
|
2024, Vol. 63 
